Compliance Analysis Overview

1 Department of Conservation and Recreation 2 Procedural Guidelines for Land Conservation Tax Credits Conservation Value Review 3 Adopted by DCR Director on December 22, 2006 4 5 A. Reporting information for all donations of land or interests in land, regardless of the 6 amount of tax credits 7 8 Pursuant to Virginia Code § 58.1-512(D)(1), the taxpayer must provide the following 9 information (collected on forms developed by the Virginia Department of Taxation and 10 provided to the Department of Conservation and Recreation (DCR) pursuant to Virginia 11 Code § 58.1-512(D)(1)) for all donations of land or conservation easements for which tax 12 credits are claimed: 13 14 1. A description of the land or easement being donated, including acreage, types of land 15 uses such as forestry, agriculture, or recreation, and property features such as 16 waterways, wetlands, or historic resources; 17 18 2. A description of the conservation purpose(s) being served by the donation; 19 20 3. A statement of the fair market value of the land being donated in the absence of any 21 easement or other restriction; 22 23 4. The public benefit derived from the donation, i.e., how a conservation easement will 24 protect the property’s resources or how ownership of the property by a public or private 25 conservation agency benefits the public; 26 27 5. The extent to which water quality best management practices will be implemented on the 28 property; and 29 30 6. Whether the property is fully or partially forested and whether a forest management plan 31 is included in the terms of the donation. 32 33 B. Review of donations seeking tax credits of $1 million or more 34 35 1. Donations of land in fee simple, including bargain sales: 36 37 To qualify for a tax credit under Virginia Code § 58.1-512, any donation of a fee simple 38 interest in real property to a public or private conservation agency (including a bargain 39 sale) that involves a tax credit application for $1 million or more must be documented 40 with adequate information demonstrating that the agency’s ownership of the land 41 provides conservation value to the Commonwealth in perpetuity. This documentation 42 shall include: 43 44 ƒ The conservation agency’s reasons for accepting the donation; 45 46 ƒ How the donation meets at least one of the conservation purposes set out in Section 47 A of the Land Preservation Tax Credits – Conservation Value Review Criteria; 48 49 ƒ The public benefit derived from the donation, that is, how the public will benefit from 50 the protection of the property’s conservation values; 51 52 ƒ The extent to which water quality best management practices will be implemented on 53 the property; and 54

Page 1 55 ƒ Whether the property is fully or partially forested and a forest management plan is 56 included in the terms of the donation. 57 58 For donations to private conservation agencies, the documentation must also affirm that 59 the conservation agency agrees that if it ever subsequently conveys its fee-simple 60 interest in the property, such a conveyance will be either a) subject to a conservation 61 easement pursuant to Va. Code §§ 10.1-1009 or 10.1-1700, or b) made to the 62 Commonwealth of Virginia or to a federal conservation agency pursuant to Va. Code § 63 58.1-512(C)(5). 64 65 2. Donations of less-than-fee interests in land (conservation easements): The taxpayer 66 shall complete and submit the form required by the Virginia Department of Taxation, 67 accompanied by a written statement from the easement holder attesting to the accuracy 68 of the information related to the conservation value criteria. A complete application 69 package must include the conservation easement deed and baseline documentation 70 report as required by Internal Revenue Regulations § 1.170A-14. 71 72 C. Verification procedures by the Department of Conservation and Recreation 73 74 To verify the conservation purpose of land or conservation easement donations seeking tax 75 credits of $1 million or more, in accordance with Virginia Code §§ 58.1-512, 58.1-512.1, and 76 581-513, the Director of DCR shall: 77 78 1. Review the LPC form required by the Virginia Department of Taxation, the deed of 79 conservation easement, the baseline documentation report, and any other 80 documentation required to be submitted by the taxpayer, such as documentation that 81 confirms that the donation has not been dedicated as open space in, or as part of, a 82 residential or commercial subdivision or development, or dedicated as open space for 83 the purpose of fulfilling density requirements to obtain approvals for zoning, subdivision, 84 site plan, or building permits; 85 86 2. Require an officer of the organization that holds the conservation easement to certify to 87 the Director of DCR that the information on the application related to conservation value 88 is accurate; 89 90 3. Verify the information with existing natural-resource and historic databases, as 91 applicable; 92 93 4. Conduct a site visit of the property, if necessary; 94 95 5. Consult with other agencies and organizations as needed to ensure that the deed of 96 easement provides appropriate protection for the resources; 97 98 6. Complete the review within 90 days, pursuant to Virginia Code § 58.1-512; and, 99 100 7. Issue a letter of determination in writing to the Department of Taxation with copies to the 101 taxpayer and to the conservation easement holder. 102 103 D. Pre-filing review 104 105 In order to facilitate successful applications for tax credits of $1 million or more, the Director 106 of DCR will offer an optional review to verify conservation value prior to recordation of the 107 easement. 108

Page 2109 The pre-filing review will be available upon request to any donor who has submitted 110 documentation that includes the following: 111 112 1. A completed LPC tax form as required by the Virginia Department of Taxation, and other 113 documentation as set out in Section C(1) above; 114 115 2. Confirmation of approval of the conservation easement document by its holder; and 116 117 3. Confirmation that donation of the easement will produce tax credits of $1 million or more. 118 Such confirmation can include a preliminary valuation or a full appraisal that states the 119 value of the conservation easement is approximately $2.5 million or more. 120 121 The Director of DCR will consult with other agencies and organizations as needed to ensure 122 that the deed of easement provides appropriate protection for the resources. Requests will 123 be handled in the order they are received and every attempt will be made to complete 124 reviews within 90 days, although review of recorded easements will receive priority handling. 125 126 Reliance on the pre-filing review will be predicated on the recording of the easement 127 document in a form consistent with the DCR review. 128 129 E. Review of conservation easements accepted by the Department of Conservation and 130 Recreation 131 132 In the event that a donation of land or conservation easement donations involving a tax 133 credit of $1 million or more is made to the Department of Conservation and Recreation, the 134 Director may request an advisory opinion from either the Virginia Land Conservation 135 Foundation or its Chairman that the deed of easement provides conservation value 136 consistent with the Conservation Value Review Criteria approved by the VLCF Board on 137 November 21, 2007. The VLCF annual report shall specifically note which donations were 138 made to the Department of Conservation and Recreation.

Page 3

1 Department of Conservation and Recreation 2 Procedural Guidelines for Land Conservation Tax Credits Conservation Value Review 3 Adopted by DCR Director on December 22, 2006 4 5 A. Reporting information for all donations of land or interests in land, regardless of the 6 amount of tax credits 7 8 Pursuant to Virginia Code § 58.1-512(D)(1), the taxpayer must provide the following 9 information (collected on forms developed by the Virginia Department of Taxation and 10 provided to the Department of Conservation and Recreation (DCR) pursuant to Virginia 11 Code § 58.1-512(D)(1)) for all donations of land or conservation easements for which tax 12 credits are claimed: 13 14 1. A description of the land or easement being donated, including acreage, types of land 15 uses such as forestry, agriculture, or recreation, and property features such as 16 waterways, wetlands, or historic resources; 17 18 2. A description of the conservation purpose(s) being served by the donation; 19 20 3. A statement of the fair market value of the land being donated in the absence of any 21 easement or other restriction; 22 23 4. The public benefit derived from the donation, i.e., how a conservation easement will 24 protect the property’s resources or how ownership of the property by a public or private 25 conservation agency benefits the public; 26 27 5. The extent to which water quality best management practices will be implemented on the 28 property; and 29 30 6. Whether the property is fully or partially forested and whether a forest management plan 31 is included in the terms of the donation. 32 33 B. Review of donations seeking tax credits of $1 million or more 34 35 1. Donations of land in fee simple, including bargain sales: 36 37 To qualify for a tax credit under Virginia Code § 58.1-512, any donation of a fee simple 38 interest in real property to a public or private conservation agency (including a bargain 39 sale) that involves a tax credit application for $1 million or more must be documented 40 with adequate information demonstrating that the agency’s ownership of the land 41 provides conservation value to the Commonwealth in perpetuity. This documentation 42 shall include: 43 44 ƒ The conservation agency’s reasons for accepting the donation; 45 46 ƒ How the donation meets at least one of the conservation purposes set out in Section 47 A of the Land Preservation Tax Credits – Conservation Value Review Criteria; 48 49 ƒ The public benefit derived from the donation, that is, how the public will benefit from 50 the protection of the property’s conservation values; 51 52 ƒ The extent to which water quality best management practices will be implemented on 53 the property; and 54

Page 1 55 ƒ Whether the property is fully or partially forested and a forest management plan is 56 included in the terms of the donation. 57 58 For donations to private conservation agencies, the documentation must also affirm that 59 the conservation agency agrees that if it ever subsequently conveys its fee-simple 60 interest in the property, such a conveyance will be either a) subject to a conservation 61 easement pursuant to Va. Code §§ 10.1-1009 or 10.1-1700, or b) made to the 62 Commonwealth of Virginia or to a federal conservation agency pursuant to Va. Code § 63 58.1-512(C)(5). 64 65 2. Donations of less-than-fee interests in land (conservation easements): The taxpayer 66 shall complete and submit the form required by the Virginia Department of Taxation, 67 accompanied by a written statement from the easement holder attesting to the accuracy 68 of the information related to the conservation value criteria. A complete application 69 package must include the conservation easement deed and baseline documentation 70 report as required by Internal Revenue Regulations § 1.170A-14. 71 72 C. Verification procedures by the Department of Conservation and Recreation 73 74 To verify the conservation purpose of land or conservation easement donations seeking tax 75 credits of $1 million or more, in accordance with Virginia Code §§ 58.1-512, 58.1-512.1, and 76 581-513, the Director of DCR shall: 77 78 1. Review the LPC form required by the Virginia Department of Taxation, the deed of 79 conservation easement, the baseline documentation report, and any other 80 documentation required to be submitted by the taxpayer, such as documentation that 81 confirms that the donation has not been dedicated as open space in, or as part of, a 82 residential or commercial subdivision or development, or dedicated as open space for 83 the purpose of fulfilling density requirements to obtain approvals for zoning, subdivision, 84 site plan, or building permits; 85 86 2. Require an officer of the organization that holds the conservation easement to certify to 87 the Director of DCR that the information on the application related to conservation value 88 is accurate; 89 90 3. Verify the information with existing natural-resource and historic databases, as 91 applicable; 92 93 4. Conduct a site visit of the property, if necessary; 94 95 5. Consult with other agencies and organizations as needed to ensure that the deed of 96 easement provides appropriate protection for the resources; 97 98 6. Complete the review within 90 days, pursuant to Virginia Code § 58.1-512; and, 99 100 7. Issue a letter of determination in writing to the Department of Taxation with copies to the 101 taxpayer and to the conservation easement holder. 102 103 D. Pre-filing review 104 105 In order to facilitate successful applications for tax credits of $1 million or more, the Director 106 of DCR will offer an optional review to verify conservation value prior to recordation of the 107 easement. 108

Page 2109 The pre-filing review will be available upon request to any donor who has submitted 110 documentation that includes the following: 111 112 1. A completed LPC tax form as required by the Virginia Department of Taxation, and other 113 documentation as set out in Section C(1) above; 114 115 2. Confirmation of approval of the conservation easement document by its holder; and 116 117 3. Confirmation that donation of the easement will produce tax credits of $1 million or more. 118 Such confirmation can include a preliminary valuation or a full appraisal that states the 119 value of the conservation easement is approximately $2.5 million or more. 120 121 The Director of DCR will consult with other agencies and organizations as needed to ensure 122 that the deed of easement provides appropriate protection for the resources. Requests will 123 be handled in the order they are received and every attempt will be made to complete 124 reviews within 90 days, although review of recorded easements will receive priority handling. 125 126 Reliance on the pre-filing review will be predicated on the recording of the easement 127 document in a form consistent with the DCR review. 128 129 E. Review of conservation easements accepted by the Department of Conservation and 130 Recreation 131 132 In the event that a donation of land or conservation easement donations involving a tax 133 credit of $1 million or more is made to the Department of Conservation and Recreation, the 134 Director may request an advisory opinion from either the Virginia Land Conservation 135 Foundation or its Chairman that the deed of easement provides conservation value 136 consistent with the Conservation Value Review Criteria approved by the VLCF Board on 137 November 21, 2007. The VLCF annual report shall specifically note which donations were 138 made to the Department of Conservation and Recreation.

Page 3

• Page 1 ---

Adopted October 15, 2003

Virginia Soil & Water Conservation Board (Board) Policy

Title: Financial Commitments For Establishment of a New Soil & Water Conservation District (SWCD/district), or Realignment of an Existing District

Purpose: To preserve the annual appropriation for SWCD funding made by the General Assembly so that the creation of a new district or realignment of an existing district does not

adversely impact the financial resources of existing districts as specified by the Board’s Policy entitled: Financial Assistance for Soil & Water Conservation Districts (districts).

To achieve this purpose:

• The Board hereby establishes a position of supporting inclusion of every county and/or city of the Commonwealth in an SWCD (solely, or in partnership with one or more localities). The Board also recognizes that creating or realigning districts can adversely impact the financial resources the Board administers.
• Given authority established by § 10.1-512. and § 10.1-514. of the Code of Virginia, the Board will require commitments of financial support from the locality(ies) of the newly created or realigned SWCD in situations where the creation of a new district, or realignment of an existing district will result in a reduction of funding to all other districts.

• This commitment shall be required as a condition of approval for establishment of a new district or realignment of an existing district.
• When a county or city not within an existing district is added to a district or is established as a new district; or an existing district’s boundaries are realigned, the newly added or established locality(ies) must commit resources (cash and/or in kind assistance) in amounts no less than the appropriate portions that comprise the essential funding level specified in the Board’s Policy entitled: Financial Assistance for Soil & Water Conservation Districts (districts) to provide for the technical and administrative needs for the district and its board of directors.

• This commitment must continue annually until an equal increase is established within state funds administered by the Board to support SWCD operational expenses, or until otherwise notified by the Board in writing.

• Page 1 ---

Adopted October 15, 2003

Virginia Soil & Water Conservation Board (Board) Policy

Title: Financial Commitments for Establishing or Realigning SWCDs

Purpose: To preserve annual SWCD funding appropriations so creation or realignment does not

adversely impact existing districts' financial resources as specified in the Board’s Policy: Financial Assistance for Soil & Water Conservation Districts.

To achieve this purpose:

• The Board supports including every county/city in an SWCD, alone or with others, recognizing that creation or realignment may impact its financial resources.
• Under Virginia Code §§ 10.1-512 and 10.1-514, the Board requires financial support commitments from localities when new or realigned districts reduce funding to others.

• This support is a condition for approving new or realigned districts.
• When a new or added locality joins or realigns a district, it must commit resources (cash/in-kind) at levels specified in the Board’s Policy: Financial Assistance for Soil & Water Conservation Districts to support district needs.

• This commitment continues annually until matched by state funds supporting SWCD expenses or until the Board notifies otherwise in writing.

• Page 1 ---

VIRGINIA SOIL AND WATER

CONSERVATION BOARD

GUIDANCE DOCUMENT ON

ENGINEERING JOB

APPROVAL AUTHORITY

PROCEDURES

(Approved December 6, 2017)

Summary: This guidance document specifies the procedures and criteria to be utilized for DCR Engineering Job Approval Authority certification.

Electronic Copy: An electronic copy of this guidance in PDF format is available on the Regulatory Town Hall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm

Contact Information: Please contact Amanda S. Pennington, PE with the Department of Conservation and Recreation’s Division of Soil and Water Conservation at Amanda.pennington@dcr.virginia.gov or by calling 804-786-0113 with any questions regarding the application of this guidance.

Engineering Job Approval Authority Procedures

I. Background:

The Virginia Agricultural Cost Share Program (VACS) is implemented at the local level by the Soil and Water Conservation Districts, under the direction of the Virginia Soil and Water Conservation Board, pursuant to §10.1-546.1 of the Code of Virginia. The Virginia Soil and Water Conservation Board (Board) is charged with overseeing the programs of the Districts in

§10.1-505 of the Code of Virginia. The Board annually adopts the Virginia Agriculture Cost-Share (VACS) Best Management Practice (BMP) Manual which includes design standards and specifications for all BMPs, including structural BMPs that require engineered designs. Design and construction of practices considered engineering require the District employee to hold appropriate levels of DCR Engineering Job Approval Authority (EJAA). DCR EJAA is assigned for each of the applicable USDA-Natural Resources Conservation Service (NRCS) components listed for the VACS practice in the Virginia Agricultural Cost-Share BMP Manual (VACS BMP Manual). Practices that require DCR EJAA have been identified by the Department's Agricultural BMP Engineer using the USDA-NRCS National Handbook of Conservation Practices Lead Discipline assignments. Some NRCS Standards have been identified as requiring a Professional Engineering (PE) license to design. A complete list of NRCS Standards that require DCR EJAA or a PE is provided in the VACS BMP Manual. This guidance outlines procedures related to the issuance of DCR EJAA as well as the criteria required to obtain and retain DCR EJAA. All practices are subject to NRCS Conservation Practice Standards and Construction Specifications found at https://efotg.sc.egov.usda.gov/treemenuFS.aspx.

(DCR-VSWCB-043) (12/17) 1

• Page 2 ---

Additionally, engineering design is subject to information detailed in the USDA-NRCS National Engineering Manual (NEM). Upon development of a technical manual, all criteria outlined in the manual shall be followed in addition to the NRCS Conservation Practice Standards. This certification process replaces any previously issued NRCS EJAA. As of January 1, 2018, NRCS EJAA will no longer be valid for Soil and Water Conservation District Employees and all engineering designs for the VACS Program must be done by an individual who is certified with DCR EJAA, or licensed as a PE in the Commonwealth of Virginia.

II. Authority:

The Code of Virginia contains the following authorities applicable to this guidance:

§ 10.1-505. Duties of Board.

1. To oversee the programs of the districts.

§ 10.1-546.1. Delivery of Agricultural Best Management Practices Cost-Share Program.

Districts shall locally deliver the Virginia Agricultural Best Management Practices Cost-Share Program described under § 10.1-2128.1, under the direction of the Board, as a means of promoting voluntary adoption of conservation management practices by farmers and land managers in support of the Department's nonpoint source pollution management program.

Appendix 1 contains the Code of Virginia authorities (extended) applicable to this guidance.

III. Discussion and Interpretation:

This service provides engineering assistance to the 47 Soil and Water Conservation Districts across the Commonwealth. Engineering assistance includes; engineering support with designs, training of District staff, and the implementation of various quality control mechanisms. The most notable of these quality control mechanisms is the implementation of the Department’s Engineering Job Approval Authority (EJAA) service.

The Department now has a Professional Engineer to serve as the State Engineer for agricultural

BMP practices. With the addition of this professional staff, the Department developed a process to issue EJAA to District staff who have demonstrated competency in the design and construction of various agricultural best management practices per USDA-NRCS standards and specifications.

If a District staff person does not have DCR EJAA for any of the practice components being designed or installed as part of the VACS practice, they are not authorized by the Department to proceed to construction of the practice components. As a result, they should contact the Department Agricultural Engineer or technician servicing their District for further instructions on what requirements will be needed to complete the practice.

(DCR-VSWCB-043) (12/17) 2

• Page 3 ---

Categories and Levels of DCR EJAA

There are three categories of DCR EJAA:

1. Investigation and Evaluation (I&E): On site observations of an exploratory nature for planning and preparation of sound alternative solutions of sufficient intensity for the cooperator to make treatment decisions. May require assistance from higher levels for large or complex jobs. (See NEM Section 501 and 510).
2. Design: Designing and checking all aspects of the supporting data, drawings, and specifications to ensure that the planned practice will meet the purpose for which it is installed. Also includes setting any specific inspection requirements. Approval signature is required. (See NEM 501 and 511)
3. Construction: Surveys, layout, staking, inspection of materials and work, making tests to

determine that the job meets specifications. Approval signature is required. (See NEM 501 and 512)

Various levels of DCR EJAA are issued for each NRCS component. For example, DCR EJAA may be issued for up to 1,500 feet of Livestock Pipeline or up to 3,000 feet of Livestock Pipeline, depending on the competency demonstrated by the individual. The levels of DCR EJAA issued for each component are maintained by the Department and are provided to each District after each review.

Review Criteria for Receiving DCR EJAA

All new DCR EJAA requires review of a minimum of three complete designs packages. The person requesting the review must have contributed to the designs and this shall be documented in the “designed by” box on the standard drawings. For a review to re-certify existing DCR EJAA, three designs is preferred, but less will be accepted if the individual has not completed

three designs since the last review. All review criteria is listed on the USDA-NRCS website, eFOTG, at https://efotg.sc.egov.usda.gov/treemenuFS.aspx.

Criteria used for Design EJAA is listed for each NRCS standard under “Design Data”.

Criteria used for Construction EJAA is listed for each NRCS standard under “Check Data”.

To obtain I&E EJAA, the individual must demonstrate competency in planning the appropriate NRCS standard for the resource concern. Please note, this does not require Conservation Planning Certification.

Review Frequency

Issuance, or renewal, of DCR EJAA is at the discretion of the reviewer. Reviews will occur either every three years or once per year based on the following criteria:

(DCR-VSWCB-043) (12/17) 3

• Page 4 ---

Three year review frequency: District employees who have held EJAA (either o NRCS or DCR) for three or more years may qualify for a three year review frequency.

One year review frequency: o  District employees who have never held EJAA (either NRCS or DCR), shall have a yearly review for the first three years of certification.  District employees who have held EJAA (either NRCS or DCR) for more than three years, but who have not had a satisfactory review (as determined by the reviewer), shall have an additional review no later than one year after the unsatisfactory review to ensure all comments from that review have been addressed. The requirement for another review within one year is in lieu of invalidating EJAA. If the second review is satisfactory, the reviewer may determine that the employee qualifies for a three year review.

Certification Documents

Certification documents shall be issued to each District employee upon completion of a review.

These documents will include a letter that details whether the review was deemed satisfactory, whether any deficiencies were found during the review, when the next review will be conducted, and a statement regarding the status of the individual's DCR EJAA. Certification documents shall also include an EJAA Certification sheet specific to the individual employee. All issued DCR EJAA, including the corresponding levels and categories (e.g. I&E, Design, Construction), will be listed.

Designs by a Professional Engineer (PE)

If a design is performed by a registered PE, either by contract or District employment, the PE must have a current license in the Commonwealth of Virginia. Additionally, the PE must sign,

seal, and date each plan sheet, including the cover sheet.

(DCR-VSWCB-043) (12/17) 4

• Page 5 ---

Appendix 1 Applicable Code of Virginia Authorities.

The Code of Virginia contains the following authorities applicable to this Guidance:

§ 10.1-505. Duties of Board.

In addition to other duties and powers conferred upon the Board, it shall have the following duties and powers:

1. To give or loan appropriate financial and other assistance to district directors in carrying out any of their powers and programs.
2. To keep district directors informed of the activities and experience of all other districts, and to facilitate an interchange of advice and experience between the districts.
3. To oversee the programs of the districts.

1. To secure the cooperation and assistance of the United States and any of its agencies, and of agencies of the Commonwealth, in the work of the districts.
2. To disseminate information throughout the Commonwealth concerning the activities and programs of the districts, and to encourage the formation of such districts in areas where their organization is desirable.
3. To assist persons, associations, and corporations engaged in furthering the programs of the districts; to encourage and assist in the establishment and operation of such associations and corporations, and to authorize financial assistance to the officers and members of such associations and corporations in the discharge of their duties.
4. To receive, review, approve or disapprove applications for assistance in planning and carrying out works of improvement under the Watershed Protection and Flood Prevention Act (Public Law 566 -- 83rd Congress, as amended), and to receive, review and approve or disapprove applications for any other similar soil and water conservation programs provided in federal laws which by their terms or by related executive orders require such action by a state agency.
5. To advise and recommend to the Governor approval or disapproval of all work plans

developed under Public Law 83-566 and Public Law 78-535 and to advise and recommend to the Governor approval or disapproval of other similar soil and water conservation programs provided in federal laws which by their terms or by related executive orders require approval or comment by the Governor.

1. To provide for the conservation of soil and water resources, control and prevention of soil erosion, flood water and sediment damages thereby preserving the natural resources of the Commonwealth. 10. To adopt regulations (i) for the operation of the voluntary nutrient management training and certification program as required by § 10.1-104.1 and (ii) that amend the application rates in the Virginia Nutrient Management Standards and Criteria as required by § 10.1-104.2:1. 11. To provide, from such funds appropriated for districts, financial assistance for the administrative, operational and technical support of districts.

§ 10.1-546.1. Delivery of Agricultural Best Management Practices Cost-Share Program.

Districts shall locally deliver the Virginia Agricultural Best Management Practices Cost-Share Program described under § 10.1-2128.1, under the direction of the Board, as a means of

(DCR-VSWCB-043) (12/17) 5

• Page 6 ---

promoting voluntary adoption of conservation management practices by farmers and land managers in support of the Department's nonpoint source pollution management program.

(DCR-VSWCB-043) (12/17) 6

• Page 1 ---

VIRGINIA SOIL AND WATER

CONSERVATION BOARD

GUIDANCE DOCUMENT ON

ENGINEERING JOB

APPROVAL AUTHORITY

PROCEDURES

(Approved December 6, 2017)

This guidance details procedures and criteria for DCR Engineering Job Approval Authority certification.

An electronic PDF of this guidance is available on the Regulatory Town Hall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm

Contact Amanda S. Pennington, PE at the Department of Conservation and Recreation’s Division of Soil and Water Conservation via Amanda.pennington@dcr.virginia.gov or 804-786-0113 for questions.

Engineering Job Approval Authority Procedures

I. Background:

VACS is implemented locally by Soil and Water Conservation Districts under the Virginia Soil and Water Conservation Board, pursuant to §10.1-546.1 of the Virginia Code. The Board oversees District programs.

§10.1-505 of the Code of Virginia. The Board annually adopts the Virginia Agriculture Cost-Share (VACS) Best Management Practice (BMP) Manual which includes design standards and specifications for all BMPs, including structural BMPs that require engineered designs. Design and construction of practices considered engineering require the District employee to hold appropriate levels of DCR Engineering Job Approval Authority (EJAA). DCR EJAA is assigned for each of the applicable USDA-Natural Resources Conservation Service (NRCS) components listed for the VACS practice in the Virginia Agricultural Cost-Share BMP Manual (VACS BMP Manual). Practices that require DCR EJAA have been identified by the Department's Agricultural BMP Engineer using the USDA-NRCS National Handbook of Conservation Practices Lead Discipline assignments. Some NRCS Standards have been identified as requiring a Professional Engineering (PE) license to design. A complete list of NRCS Standards that require DCR EJAA or a PE is provided in the VACS BMP Manual. This guidance outlines procedures related to the issuance of DCR EJAA as well as the criteria required to obtain and retain DCR EJAA. All practices are subject to NRCS Conservation Practice Standards and Construction Specifications found at https://efotg.sc.egov.usda.gov/treemenuFS.aspx.

(DCR-VSWCB-043) (12/17) 1

• Page 2 ---

Engineering design is governed by the USDA-NRCS National Engineering Manual (NEM). Once a technical manual is developed, its criteria must be followed alongside NRCS standards. This process replaces previous NRCS EJAA. From January 1, 2018, NRCS EJAA is invalid for District employees; all VACS designs must be by a DCR EJAA-certified or licensed PE in Virginia.

II. Authority:

The Code of Virginia contains authorities applicable to this guidance:

§ 10.1-505. Duties of Board.

1. To oversee district programs.

§ 10.1-546.1. Delivery of BMP Cost-Share Program.

Districts shall locally deliver the Virginia Agricultural Best Management Practices Cost-Share Program under § 10.1-2128.1, under the Board's direction, as a means of promoting voluntary conservation practices by farmers and land managers supporting the Department's nonpoint source pollution program.

Appendix 1 lists the applicable Virginia authorities for this guidance.

III. Discussion and Interpretation:

This service offers engineering support, design assistance, staff training, and quality control, notably through the Department’s Engineering Job Approval Authority (EJAA).

The Department has a Professional Engineer serving as the State Engineer for agricultural

BMP practices. With this staff addition, the Department developed a process to issue EJAA to District staff demonstrating competency in designing and constructing BMPs per USDA-NRCS standards.

District staff without DCR EJAA for any VACS practice component are not authorized to proceed with construction. They must contact the Department Agricultural Engineer or technician for instructions.

(DCR-VSWCB-043) (12/17) 2

• Page 3 ---

Categories and Levels of DCR EJAA

There are three categories of DCR EJAA:

1. Investigation and Evaluation (I&E): On site observations of an exploratory nature for planning and preparation of sound alternative solutions of sufficient intensity for the cooperator to make treatment decisions. May require assistance from higher levels for large or complex jobs. (See NEM Section 501 and 510).
2. Design: Developing and reviewing data, drawings, and specifications to ensure the practice meets its purpose. Includes setting inspection requirements. Approval signature required. (See NEM 501, 511).
3. Construction: Surveys, layout, staking, inspection of materials and work, making tests to

Determine job compliance; approval signature required. (See NEM 501 and 512)

DCR EJAA levels vary per NRCS component; for example, up to 1,500 or 3,000 feet of Livestock Pipeline, based on competency. Levels are maintained by the Department and shared after review.

Review Criteria for Receiving DCR EJAA

All new DCR EJAA reviews require at least three complete design packages, with contributions documented. Re-certification prefers three designs but allows fewer if previous designs are incomplete.

Three designs since last review are preferred; criteria are listed at https://efotg.sc.egov.usda.gov/treemenuFS.aspx.

Design EJAA criteria are listed under “Design Data” for each NRCS standard.

Construction EJAA criteria are listed under “Check Data” for each NRCS standard.

To obtain I&E EJAA, the individual must demonstrate competency in planning the appropriate NRCS standard for the resource concern. Please note, this does not require Conservation Planning Certification.

Review Frequency

DCR EJAA issuance or renewal is at the reviewer’s discretion. Reviews occur every three years or annually based on criteria:

(DCR-VSWCB-043) (12/17) 3

• Page 4 ---

Three-year review: District employees with ≥3 years of EJAA (NRCS or DCR) may qualify for three-year reviews.

One year review frequency: o  District employees who have never held EJAA (either NRCS or DCR), shall have a yearly review for the first three years of certification.  District employees who have held EJAA (either NRCS or DCR) for more than three years, but who have not had a satisfactory review (as determined by the reviewer), shall have an additional review no later than one year after the unsatisfactory review to ensure all comments from that review have been addressed. The requirement for another review within one year is in lieu of invalidating EJAA. If the second review is satisfactory, the reviewer may determine that the employee qualifies for a three year review.

Certification Documents

Certification documents shall be issued to each District employee upon review completion.

These documents include a letter detailing review status, deficiencies, next review date, and DCR EJAA status, plus an EJAA Certification sheet for the employee, listing all issued DCR EJAA levels and categories.

Designs by a Professional Engineer (PE)

If a design is performed by a registered PE, by contract or District employment, the PE must hold a current Virginia license and sign,

seal, and date each plan sheet, including the cover sheet.

(DCR-VSWCB-043) (12/17) 4

• Page 5 ---

Appendix 1 Applicable Code of Virginia Authorities.

The Code of Virginia contains authorities applicable to this Guidance:

§ 10.1-505. Duties of Board.

In addition to other duties, the Board shall have the following powers:

1. To provide financial and other assistance to district directors for their powers and programs.
2. To inform district directors of other districts' activities and facilitate advice exchange.
3. To oversee the programs of the districts.

1. To secure cooperation of the U.S. and Commonwealth agencies in district work.
2. To disseminate district activities and programs across the Commonwealth and encourage district formation where needed.
3. To assist persons, associations, and corporations promoting district programs; encourage and support their establishment and operation; authorize financial aid to officers and members.
4. To review and approve/disapprove applications for assistance under the Watershed Protection and Flood Prevention Act and similar federal soil and water conservation programs requiring state agency action.
5. To advise and recommend to the Governor on work plan approvals.

Developed under Public Laws 83-566 and 78-535 to advise the Governor on approval of similar federal soil and water conservation programs requiring approval or comment.

1. To conserve soil and water, control erosion, flood, and sediment damages, and preserve natural resources. Also, adopt regulations for nutrient management training and application rates, and provide financial support from district funds.

§ 10.1-546.1. Delivery of Agricultural Best Management Practices Cost-Share Program.

Districts shall locally deliver the Virginia Agricultural Best Management Practices Cost-Share Program described under § 10.1-2128.1, under the direction of the Board, as a means of

(DCR-VSWCB-043) (12/17) 5

• Page 6 ---

promoting voluntary adoption of conservation management practices by farmers and land managers in support of the Department's nonpoint source pollution management program.

(DCR-VSWCB-043) (12/17) 6

• Page 1 ---

VIRGINIA LAND

CONSERVATION FOUNDATION

GUIDANCE DOCUMENT ON

CONSERVATION EASEMENT

DISPUTE RESOLUTION

Adopted October 27, 2015

Summary: In accordance with § 10.1-1021.2 of the Code of Virginia, this document serves to provide guidance to any private owner of the fee interest in land that is subject to a perpetual conservation easement pursuant to the Conservation Easement Act, Chapter 10.1 (§ 10.1-1009 et seq.) of Title 10.1 of the Code of Virginia, any holder of such an easement, or any holder of a third-party right of enforcement of such an easement, regarding procedures for submitting a request to the Virginia Land Conservation Foundation to resolve a dispute that arises out of or relates to the interpretation or administration of their conservation easement. Such request shall not be part of a dispute already in litigation. The Virginia Land Conservation Foundation shall utilize the process set forth in the Administrative Dispute Resolution Act, Chapter 41.1 (§ 2.2-4115 et seq.) of Title 2.2 of the Code of Virginia and the procedures outlined in this guidance to respond to requests.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for the Virginia Land Conservation Foundation (Foundation) and the Department of Conservation and Recreation (Department). This guidance provides a general interpretation of the applicable Code but is not meant to be exhaustive in nature. Each situation may differ and may require additional interpretation of the Administrative Dispute Resolution Act, the Conservation Easement Act, and the Virginia Land Conservation Foundation statutes, Chapter 10.2 (§ 10.1-1017 et seq.) of Title 10.1 of the Code of Virginia.

Virginia Land Conservation Foundation Conservation Easement Dispute Resolution

I. Background: In accordance with § 10.1-1021.2 of the Code of Virginia, the Foundation’s Board has been directed to adopt guidelines by which specified parties may request the Foundation to resolve a dispute related to the interpretation or administration of a conservation easement. This guidance

serves to set out such procedures.

II. Definitions "Conservation easement" means a nonpossessory interest of a holder in real property, whether easement appurtenant or in gross, acquired through gift, purchase, devise, or bequest imposing limitations or affirmative obligations, the purposes of which include retaining or protecting natural or open-space values of real property, assuring its availability for agricultural, forestal, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural or archaeological aspects of real property.

(DCR-VLCF -007) (10/15) 1

• Page 2 ---

“Chair” means the Secretary of Natural Resources.

“Department” means the Department of Conservation and Recreation.

“Director” means the Director of the Department of Conservation and Recreation. For the purposes of this document, the Director serves as the Executive Secretary to the Foundation.

"Dispute resolution proceeding" means any structured process, excluding arbitration, in which a neutral assists parties to a dispute in reaching a voluntary settlement by means of dispute resolution processes such as mediation, conciliation, facilitation, partnering, fact-finding, neutral evaluation, use of ombudsmen or any other proceeding leading to a voluntary settlement.

“Foundation” means the Virginia Land Conservation Foundation or VLCF created pursuant to Chapter 10.2 (§ 10.1-1017 et seq.) of Title 10.1 of the Code of Virginia.

"Holder" means a qualified charitable organization pursuant to §§ 10.1-1009 and 10.1-1010 of

the Code of Virginia, which holds a nonpossessory interest in real property through a conservation easement that imposes limitations or affirmative obligations, the purposes or powers of which include: (i) retaining or protecting the natural or open-space values of real property; (ii) assuring its availability for agricultural, forestal, recreational, or open-space use; (iii) protecting natural resources; (iv) maintaining or enhancing air or water quality; or (v) preserving the historic, architectural or archaeological aspects of real property.

"Mediation" means a process in which a neutral facilitates communication between the parties and without deciding the issues or imposing a solution on the parties enables them to understand and resolve their dispute.

"Mediation program" means a program of the Foundation, administered by the Department, through which mediators or mediation is made available and includes the Director, agents and employees of the program.

"Mediator" means a neutral who is an impartial third party selected by agreement of the parties

to a dispute to assist them in mediation.

"Neutral" means an individual who is trained or experienced in conducting dispute resolution proceedings and in providing dispute resolution services. For the purposes of this Guidance, it is limited to an individual who has no interest or prior knowledge of the issue associated with a dispute brought to the Foundation.

"Third party right of enforcement" means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association or charitable trust which, although eligible to be a holder, is not a holder.

III. Authority: The Virginia Land Conservation Foundation statute (§ 10.1-1021.2 of the Code of Virginia) contains the following authorities applicable to this guidance:

(DCR-VLCF -007) (10/15) 2

• Page 3 ---

§ 10.1-1021.2. Additional powers of the Foundation; requests for conservation easement dispute mediation.

Any private owner of the fee interest in land that is subject to a perpetual conservation easement pursuant to Chapter 10.1 (§ 10.1-1009 et seq.), any holder of such an easement, or any holder of a third-party right of enforcement of such an easement may submit a request, pursuant to guidelines adopted by the Foundation, that the Foundation utilize the process set forth in the Administrative Dispute Resolution Act, Chapter 41.1 (§ 2.2-4115 et seq.) of Title 2.2, to resolve a dispute that is not part of a dispute already in litigation and arises out of or relates to the interpretation or administration of a conservation easement made or entered into pursuant to Chapter 10.1 (§ 10.1-1009 et seq.).

Should the affected parties agree to mediation, all memoranda, work products, or other materials contained in the case file of a mediator are confidential and all materials in the case file of a mediation program are confidential pursuant to § 2.2-4119 of the Code of Virginia.

IV. Process:

Any private owner of the fee interest in land that is subject to a perpetual conservation easement pursuant to the Conservation Easement Act, any holder of such an easement, or any holder of a third-party right of enforcement of such an easement may submit a request to the Foundation to resolve a dispute related to the interpretation or administration of a conservation easement.

Accordingly, standing for submitting a request to the Foundation (those parties eligible to participate) shall be limited to:

1. Any private owner of the fee interest in land that is subject to a perpetual conservation easement;
2. Any holder of a perpetual conservation easement; or
3. Any holder of a third-party right of a perpetual conservation easement.

Note: This Guidance is limited to conservation easements held by non-profit entities under the Virginia Conservation Easement Act; it does not include those open space easements held by state agencies or other public bodies under the Open-Space Land Act, Chapter 17 (§§ 10.1-1700 et seq.) of Title 10.1 of the Code of Virginia.

Such requests shall be in writing, shall be submitted to the Executive Secretary of the Foundation (the Director of the Department), and shall contain the following preliminary information:

1. The name and contact information for the requestor;
2. The standing of the requestor;
3. A statement from the requestor saying they wish to voluntarily enter mediation;
4. Contact information for all of the other parties with standing;
5. Whether or not the matter is currently under or pending litigation;
6. A short narrative outlining the issue of concern and how it relates to the interpretation or administration of a conservation easement.

Upon receiving a request for mediation the Executive Secretary of the Foundation or their designee, shall contact the other parties who have standing to see if they wish to participate in mediation.

All parties with standing must choose to participate before the Foundation will proceed with mediation. If all parties agree, the Executive Secretary of the Foundation shall advise the Chair of the request and offer the Department’s recommendation. If not all parties agree to participate,

(DCR-VLCF -007) (10/15) 3

• Page 4 ---

the Executive Secretary of the Foundation shall notify the requestor that mediation is not agreed to by all parties.

The Chair has sole discretion as to whether the Foundation and the Department participate in a specific dispute resolution proceeding via mediation.

If the Chair determines that the matter does not merit mediation by the Department on behalf of the Foundation, the Executive Secretary of the Foundation shall respond to the requestor explaining the reasons for denial.

If the Chair determines that the matter does merit mediation, all parties with standing shall be notified of the decision and shall be subsequently notified when a date and location of the mediation has been agreed to by the participating parties.

On behalf of the Foundation, the Department shall assign a trained mediator of the Department to mediate the dispute.

Prior to the date of the mediation, the assigned mediator shall contact each party seeking additional information regarding the issue and to determine what the potential barriers are.

In general, the mediator will bring the parties together, set out the rules, and facilitate the mediation session. While the specific tools used may depend on the mediator, it should be expected that the mediator may provide each party an opportunity to speak uninterrupted, summarize the issues, define the problem to be solved, collectively brainstorm options, come to agreement over a solution and its terms, and assist in drafting an agreement for adoption by the parties. All aspects of the mediation shall remain confidential unless all participating parties agree to their release. However, the written settlement agreement will not be confidential unless the parties agree in writing.

The Foundation shall be apprised at meetings that a request for mediation has been received and the status of the mediation (pending, underway, discontinued, completed) but the names of the parties will not be shared publicly. The settlement agreement will be provided to the Foundation

unless the parties expressly agree in writing that it remain confidential.

Note: Parties to a disagreement may at anytime seek mediation services independent of those available from the Foundation. Expenses for such mediation shall be the sole responsibility of the parties involved.

V. Adoption, Amendments, and Repeals: This document was adopted by the Virginia Land Conservation Foundation on October 27, 2015, and may be amended or repealed as necessary by the Foundation.

(DCR-VLCF -007) (10/15) 4

• Page 1 ---

VIRGINIA LAND

CONSERVATION FOUNDATION

GUIDANCE DOCUMENT ON

CONSERVATION EASEMENT

DISPUTE RESOLUTION

Adopted October 27, 2015

Summary: Pursuant to § 10.1-1021.2, this guidance informs private landowners, easement holders, or third-party enforcers on submitting dispute resolution requests to the Virginia Land Conservation Foundation, excluding litigation cases. The Foundation uses the Administrative Dispute Resolution Act, Chapter 41.1 (§ 2.2-4115 et seq.) of Title 2.2, and this guidance to respond.

Disclaimer: This guidance outlines standard procedures for the Foundation and Department, offering general interpretation of applicable laws. Situations may vary, requiring further interpretation of the Administrative Dispute Resolution Act, Conservation Easement Act, and Chapter 10.2 statutes.

Virginia Land Conservation Foundation Conservation Easement Dispute Resolution

I. Background: Pursuant to § 10.1-1021.2, the Foundation’s Board is directed to adopt guidelines for parties to request dispute resolution regarding conservation easements. This guidance

sets out these procedures.

II. Definitions: "Conservation easement" is a nonpossessory interest in real property, acquired via gift, purchase, devise, or bequest, with purposes including protecting natural/open-space values, ensuring use for agriculture, forestry, recreation, or open space, natural resource protection, air/water quality, or preserving historical/archaeological features.

(DCR-VLCF -007) (10/15) 1

• Page 2 ---

“Chair” means the Secretary of Natural Resources.

“Department” means the Department of Conservation and Recreation.

“Director” means the Director of the Department of Conservation and Recreation, serving as the Foundation’s Executive Secretary.

"Dispute resolution proceeding" means any structured process, excluding arbitration, in which a neutral assists parties to a dispute in reaching a voluntary settlement by means of dispute resolution processes such as mediation, conciliation, facilitation, partnering, fact-finding, neutral evaluation, use of ombudsmen or any other proceeding leading to a voluntary settlement.

“Foundation” means the Virginia Land Conservation Foundation (VLCF), established under Chapter 10.2 (§ 10.1-1017 et seq.) of Title 10.1.

"Holder" means a qualified charitable organization pursuant to §§ 10.1-1009 and 10.1-1010 of

the Code of Virginia, which holds a nonpossessory interest in real property through a conservation easement that imposes limitations or affirmative obligations, the purposes or powers of which include: (i) retaining or protecting the natural or open-space values of real property; (ii) assuring its availability for agricultural, forestal, recreational, or open-space use; (iii) protecting natural resources; (iv) maintaining or enhancing air or water quality; or (v) preserving the historic, architectural or archaeological aspects of real property.

"Mediation" means a process in which a neutral facilitates communication between the parties and without deciding the issues or imposing a solution on the parties enables them to understand and resolve their dispute.

"Mediation program" means a program of the Foundation, administered by the Department, through which mediators or mediation is made available and includes the Director, agents and employees of the program.

"Mediator" means a neutral who is an impartial third party selected by agreement of the parties

to a dispute to assist them in mediation.

"Neutral" means an individual who is trained or experienced in conducting dispute resolution proceedings and in providing dispute resolution services. For the purposes of this Guidance, it is limited to an individual who has no interest or prior knowledge of the issue associated with a dispute brought to the Foundation.

"Third party right of enforcement" means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association or charitable trust which, although eligible to be a holder, is not a holder.

III. Authority: The Virginia Land Conservation Foundation statute (§ 10.1-1021.2) grants authority for this guidance.

(DCR-VLCF -007) (10/15) 2

• Page 3 ---

§ 10.1-1021.2 grants additional powers and authority for dispute mediation requests.

Any private owner of the fee interest in land that is subject to a perpetual conservation easement pursuant to Chapter 10.1 (§ 10.1-1009 et seq.), any holder of such an easement, or any holder of a third-party right of enforcement of such an easement may submit a request, pursuant to guidelines adopted by the Foundation, that the Foundation utilize the process set forth in the Administrative Dispute Resolution Act, Chapter 41.1 (§ 2.2-4115 et seq.) of Title 2.2, to resolve a dispute that is not part of a dispute already in litigation and arises out of or relates to the interpretation or administration of a conservation easement made or entered into pursuant to Chapter 10.1 (§ 10.1-1009 et seq.).

If parties agree to mediation, all case file materials are confidential per § 2.2-4119.

IV. Process:

Private landowners, easement holders, or third-party enforcers may request dispute resolution from the Foundation regarding easement interpretation or administration.

Standing to submit requests is limited to eligible parties:

1. Any private owner of the fee interest in land subject to a perpetual conservation easement;
2. Any holder of a perpetual conservation easement; or
3. Any holder of a third-party right of a perpetual conservation easement.

This guidance applies only to easements held by non-profits under the Virginia Conservation Easement Act, excluding open space easements held by state agencies under Chapter 17.

Requests must be in writing, submitted to the Foundation’s Executive Secretary (Department Director), and include preliminary information:

1. The name and contact information for the requestor;
2. Requestor's standing;
3. Requestor's statement of voluntary mediation intent;
4. Contact information for all parties with standing;
5. Whether the matter is currently under or pending litigation;
6. A brief narrative outlining the issue and its relation to conservation easement interpretation or administration.

Upon receiving a mediation request, the Executive Secretary or designee will contact eligible parties to confirm participation.

All eligible parties must agree to participate before mediation proceeds. If so, the Executive Secretary informs the Chair and offers the Department’s recommendation. If not,

(DCR-VLCF -007) (10/15) 3

• Page 4 ---

The Executive Secretary shall notify the requestor if all parties do not agree to mediation.

The Chair has sole discretion to decide if the Foundation and Department participate in mediation.

If the Chair finds the matter not suitable for mediation, the Executive Secretary shall explain the denial to the requestor.

If the Chair approves mediation, all standing parties will be notified of the decision and later of the agreed date and location.

The Department shall assign a trained mediator to mediate on behalf of the Foundation.

Before mediation, the mediator shall contact each party for additional info and potential barriers.

The mediator will convene parties, set rules, facilitate, allow each to speak, summarize issues, brainstorm, reach agreement, and draft settlement. Confidentiality applies unless all parties agree otherwise.

The Foundation will be informed of mediation status (pending, underway, discontinued, completed) without party names; the settlement agreement will be provided.

unless parties agree in writing it remains confidential.

Parties may seek independent mediation at their expense anytime, outside Foundation services.

Adopted October 27, 2015, by the Virginia Land Conservation Foundation; may be amended or repealed as needed.

(DCR-VLCF -007) (10/15) 4

• Page 1 ---

VIRGINIA SOIL AND WATER CONSERVATION BOARD GUIDANCE

DOCUMENT ON FREEDOM OF INFORMATION ACT REQUIREMENTS

FOR RESOURCE MANAGEMENT PLANS PROGRAM IMPLEMENTATION

BY SOIL AND WATER CONSERVATION DISTRICT BOARDS AND

TECHNICAL REVIEW COMMITTEES

Approved May 20, 2015 (Effective July 1, 2015); revised September 27, 2018

Summary: This document serves to provide guidance to Resource Management Plan (RMP) review authorities regarding the review of RMPs in a manner which protects personal, proprietary, and confidential information while also remaining in compliance with Virginia Freedom of Information Act (FOIA) (§2.2-3700 et seq. of the Code of Virginia) requirements. The document outlines procedures to be utilized in accordance with closed meeting allowances provided for in § 2.2-3711 (A) (45) and referenced in § 10.1-104.7 (E) of the Code of Virginia in order to protect such information.

Electronic Copy:

An electronic copy of this guidance in PDF format is available on the Regulatory Town Hall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Soil and Water at rmp@dcr.virginia.gov or by calling 804-371-0297 with any questions regarding the application of this guidance.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for Virginia’s Soil and Water Conservation Districts (Districts) and their Technical Review Committees (TRCs) that administer the RMP Program on behalf of the Virginia Soil and Water Conservation Board (VSWCB) and the Department of Conservation and Recreation (Department). This guidance provides a general interpretation of the applicable Code and Regulations but is not meant to be exhaustive in nature. Each situation may differ and may

require additional interpretation of the Resource Management Plans Act and attendant regulations.

(DCR-VSWCB-036) (09/18) 1

• Page 2 ---

FOIA Requirements for RMP Review by District Boards and TRCs

I. Background: The RMP program provides a voluntary way to promote the use of conservation practices that improve farming operations and water quality. RMPs can help farm owners and operators take advantage of all the conservation measures at their disposal. The plans are designed to encourage farmers, either the farm owner or operator, to use a high level of best management practices (BMPs) that reduce runoff pollution to local waters and, in many cases, improve the farmer’s financial bottom line.

Section 4VAC50-70-70 (A) of the RMP regulations stipulates that “[u]pon completion of a new or revised RMP in accordance with 4VAC50-70-50 and 4VAC50-70-60, the owner or operator or the RMP developer on behalf of the owner or operator, shall submit the RMP to the review

authority."

Section 4VAC50-70-70 (B) of the RMP regulations stipulates that “[e]ach soil and water conservation district shall establish a Technical Review Committee (TRC). RMPs received by a soil and water conservation district shall be referred to the TRC for review to ensure the RMP fully meets the minimum standards set forth in 4VAC50-70-40 and the components specified in

4VAC50-70-50.”

The definition of Technical Review Committee set out in 4VAC50-70-10 specifies that a TRC is a committee established by a Soil and Water Conservation District Board to review RMPs and provide recommendations to the Soil and Water Conservation District Board regarding RMPs.

FOIA [§ 2.2-3705.6 (25) of the Code of Virginia] provides an exclusion for information of a proprietary nature furnished by an agricultural landowner or operator pursuant to an RMP, and the Resource Management Plans Act [§ 10.1-104.7 (E) of the Code of Virginia] specifies that any personal or proprietary information collected pursuant to the Act shall be exempt from

FOIA, except where specifically permitted in accordance with the section. Further, § 2.2-220.3 of the Code of Virginia specifies that information collected pursuant to voluntary actions taken by the agricultural and silvicultural sectors shall be maintained as confidential and is also exempt from FOIA.

As it relates to RMP review and discussion, TRCs and District Boards are, by definition, public bodies, and meetings of the TRC or the District Board are required to be open meetings, unless the subject of the RMP item being discussed would result in the disclosure of personal or proprietary information which allows for such information to be discussed in a closed meeting as provided for in § 2.2-3711 (A) (45) and referenced in § 10.1-104.7 (E) of the Code of Virginia.

This guidance serves to clarify procedures that TRCs and District Boards as public bodies should follow regarding the management and discussion of personal, proprietary, and confidential information associated with RMPs and the RMP program.

(DCR-VSWCB-036) (09/18) 2

• Page 3 ---

II. Definitions

"Closed meeting" means a meeting from which the public is excluded. (Pursuant to § 2.2-3701 of the Code of Virginia)

“Department” means the Department of Conservation and Recreation.

“Director” means the officially appointed individual who directs, and is ultimately responsible for, the overall operations of the Department of Conservation and Recreation.

“Meeting” or “Meetings" means the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708 or 2.2-3708.1, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than

three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. The gathering of employees of a public body shall not be deemed a "meeting" subject to the provisions of this chapter. (Pursuant to § 2.2-3701 of the Code of Virginia)

"Open meeting" or "public meeting" means a meeting at which the public may be present. (Pursuant to § 2.2-3701 of the Code of Virginia)

"Operator" means a person who exercises managerial control over the management unit. (Pursuant to 4VAC50-70-10)

"Owner" means a person who owns land included in a management unit. (Pursuant to 4VAC50-70-10)

“Public body” means any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including

cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. It shall include ... (ii) any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members. … (Pursuant to § 2.2-3701 of the Code of Virginia)

“Review authority” means a soil and water conservation district or the department where applicable that is authorized under this chapter [the RMP Regulations] to determine the adequacy of a resource management plan and perform other duties specified by this chapter. (Pursuant to

4VAC50-70-10)

"RMP developer" means an individual who meets the qualifications established by this chapter to prepare or revise a resource management plan. (Pursuant to 4VAC50-70-10)

(DCR-VSWCB-036) (09/18) 3

• Page 4 ---

"Soil and water conservation district" or "district" means a political subdivision of the Commonwealth organized in accordance with the provisions of Chapter 5 (§ 10.1-500 et seq.) of Title 10.1 of the Code of Virginia. (Pursuant to 4VAC50-70-10)

“Technical Review Committee” or “TRC” means a committee established by a soil and water conservation district board to review RMPs and provide recommendations to the soil and water conservation district board regarding RMPs. A TRC may include, but not be limited to, the following members: soil and water conservation district directors, associates, and personnel;

Virginia Cooperative Extension personnel; department nutrient management specialists; and such other technical resources available to the district. (Pursuant to 4VAC50-70-10)

III. Authority:

The Resource Management Plan Act (§ 10.1-104.7 et seq. of the Code of Virginia) contains the following authorities applicable to this guidance:

§ 10.1-104.7 Resource Management Plans; effect of implementation; exclusions.

E. Any personal or proprietary information collected pursuant to this article shall be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except that the Director may release information that has been transformed into a statistical or aggregate form that does not allow identification of the persons who supplied, or are the subject of, particular information. This subsection shall not preclude the application of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) in all other instances of federal or state regulatory actions. Pursuant to subdivision A 45 of § 2.2-3711, public bodies may hold closed meetings for discussion or consideration of certain records excluded from the provisions of this article and the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

The FOIA Act (§ 2.2-3700 et seq. of the Code of Virginia) contains the following authorities

applicable to this guidance:

§ 2.2-3705.6. Exclusions to application of chapter; proprietary records and trade secrets.

The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: ….

25. Information of a proprietary nature furnished by an agricultural landowner or operator to the Department of Conservation and Recreation, the Department of Environmental Quality, the Department of Agriculture and Consumer Services or any political subdivision, agency, or board of the Commonwealth pursuant to §§ 10.1-104.7, 10.1-104.8, and 10.1-104.9, other than when required as part of a state or federal regulatory enforcement action.

(DCR-VSWCB-036) (09/18) 4

• Page 5 ---

§ 2.2-3711. Closed meetings authorized for certain limited purposes.

A. Public bodies may hold closed meetings only for the following purposes: ….

45. Discussion or consideration of personal and proprietary information related to the resource management plan program and subject to the exclusion in (i) subdivision 25 of §

1. 2-3705.6 or (ii) subsection E of § 10.1-104.7. This exclusion shall not apply to the discussion or consideration of records that contain information that has been certified for release by the person who is the subject of the information or transformed into a statistical or aggregate form that does not allow identification of the person who supplied, or is the subject of, the information.

Consideration for maintaining the confidentiality of information included in an RMP regarding voluntary actions taken by the agricultural and silvicultural sectors must also be made.

§ 2.2-220.3. Development of strategies to collect land use and conservation information.

The Secretary of Natural Resources, with assistance from the Secretary of Agriculture and Forestry, shall establish and maintain a database of the critical data attributes for onsite best management practices implemented in the Commonwealth that limit the amount of nutrients and sediment entering state waters. The database shall document voluntary actions taken by the agricultural and silvicultural sectors and should enable the application of the collected data towards projections of progress towards Virginia's water quality goals by sharing the data with the appropriate federal or state agencies. To the extent possible or appropriate, the database shall (i) be uniform in content and format to applications in the other states of the Chesapeake Bay watershed, (ii) maintain the confidentiality of information, and (iii) use existing methods of data collection including reports to the U.S. Department of Agriculture's Farm Service Agency, soil and water conservation districts, and localities for the purpose of land use valuation. Any information collected pursuant to this section shall be exempt from the Freedom of

Information Act (§ 2.2-3700 et seq.).

The Resource Management Plans Regulations contain the following authorities applicable to this guidance:

4VAC50-70-70. Review of a Resource Management Plan.

A. Upon completion of a new or revised RMP in accordance with 4VAC50-70-50 and 4VAC50-70-60, the owner or operator or the RMP developer on behalf of the owner or operator, shall submit the RMP to the review authority. If the RMP developer is a district employee or district board member of the district that is the designated review authority, the department shall serve as the review authority for that RMP.

B. Each soil and water conservation district shall establish a Technical Review Committee (TRC). RMPs received by a soil and water conservation district shall be referred to the TRC for review to ensure the RMP fully meets the minimum standards set forth in 4VAC50-70-40 and the components specified in 4VAC50-70-50. [Following review, the TRC provides recommendations to the soil and water conservation district board regarding RMPs.] …

(DCR-VSWCB-036) (09/18) 5

• Page 6 ---

IV. Discussion and Interpretation:

The Department’s RMP regulations (4VAC50-70-10 et seq.) require a District Board to set up a TRC, which will review the RMPs and provide recommendations to the District Board. The District board votes on the RMP. While conducting the review and associated meetings, the TRC and District Board must protect personal and proprietary information associated with an

RMP.

FOIA [§ 2.2-3705.6 (25) of the Code of Virginia] provides an exclusion for information of a proprietary nature furnished by an agricultural landowner or operator pursuant to an RMP, and the Resource Management Plans Act [§ 10.1-104.7 (E) of the Code of Virginia] specifies that any personal or proprietary information collected pursuant to the Act shall be exempt from

FOIA, except where specifically permitted in accordance with the section. Further, § 2.2-220.3 of the Code of Virginia specifies that information collected pursuant to voluntary actions taken by the agricultural and silvicultural sectors shall be maintained as confidential and is also exempt from FOIA.

In order to prevent public disclosure of such protected information, a closed meeting to discuss such information as it relates to RMPs is provided for in § 2.2-3711 (A) (45) and referenced in § 10.1-104.7 (E) of the Code of Virginia.

For the purposes of the closed meeting exemption, "personal information" should be understood as information that reveals the identity of the applicant or location of the tract: for example, any and all maps or geographic references. The applicant's suite of BMPs (including the specifics of each component) is not “proprietary information” so long as those BMPs, and any associated soil studies and other information, are not linked to the applicant or the tract's location thus the release of such information would not inhibit a business or have an economic impact on it should such information be generally disclosed. Where a FOIA question arises, the Districts should

consult with legal counsel at the Office of the Attorney General.

Documents furnished by an owner or operator are excluded from FOIA and should not be released. Other documents (not furnished by an owner or operator) that contain personal or proprietary information should not be released or should be redacted. Districts should contact legal counsel as questions arise regarding what can be disclosed and in what manner.

Below is a list of items not subject to FOIA: General Information

• Any 1619 information (farm, tract, and field) [available as a USDA Section 1619 Cooperator]; and
• Social security numbers and tax id numbers.

Specific RMP Information

• RMP-1 and RMP-2 BMP applications/approvals/contracts;

• RMPs and associated documents and plans;
• Farm assessment for an RMP;
• Attachments (pdf, pics, etc) to an RMP;

(DCR-VSWCB-036) (09/18) 6

• Page 7 ---

• Maps developed for an RMP; and
• RMP data contained in the Conservation Planning and RMP Modules.

Below is a list of items that will contain protected personal or proprietary information and which must be redacted if released:

• RMP inspection documents;
• RMP corrective action agreements;
• E-mails and letters associated with a specific RMP regarding RMP development, review, Certificate issuance, modification, and revocation;

• RMP developer applications; and
• Any information regarding an RMP developer except information released on the Department’s website.

Because the law specifies a permissible way to release the RMP gathered information (i.e., in statistical or aggregate form) by the Director or upon the certification for release by the person who is the subject of the information, release in other forms is prohibited by law. Thus, if a District receives a FOIA request for an RMP or list of applicants, it should, pursuant to § 2.2-3704 (B) (1) or (B) (3) of the Code of Virginia, timely respond that the District is prohibited by law from releasing the RMP information and refer the requester to the Department.

FOIA also requires that all meetings of public bodies shall be open, unless otherwise exempted.

A District Board falls within the FOIA definition of a public body. Additionally, a TRC also qualifies as a public body under FOIA, as it is a committee created to advise a public body

(despite including citizen members).

However, in accordance with § 2.2-3711 (A) (45) of the Code of Virginia, the discussion or consideration of personal and proprietary information that is excluded from the provisions of FOIA pursuant to (i) subdivision 25 of § 2.2-3705.6 or (ii) subsection E of § 10.1-104.7 by a TRC or District Board may be handled in a closed meeting, or other options to protect the disclosure of personal and proprietary information may also be considered.

A TRC or District Board may utilize either one or a combination of the following three options to discuss the RMP. It is important to realize; however, that the TRC or District Board must always conduct the recommendation for approval or RMP approval vote, respectively, in an open meeting. This document will provide further guidance regarding each of the options listed below:

1. A TRC or District Board may go into closed session to discuss personal and proprietary information regarding an RMP. (This option will provide for the most streamlined process and create the least opportunity for the accidental disclosure of personal,

proprietary, or confidential information.)

1. A TRC or District Board may redact personal, proprietary, and otherwise confidential information from the discussion packet and conduct the entire meeting in an open meeting. In an open meeting, the plan must be referenced only by a plan number.
2. A District Board may delegate RMP approval (following TRC review and recommendation) to a single individual who would approve the RMP outside of a meeting. [It is strongly recommended that such actions should be reported back to the

(DCR-VSWCB-036) (09/18) 7

• Page 8 ---

District Board and be reflected in District Board minutes to ensure continuity of RMP records.]

1. CLOSED MEETING GUIDELINES FOR DISCUSSION OF PERSONAL AND

PROPRIETARY INFORMATION ASSOCIATED WITH A RESOURCE

MANAGEMENT PLAN

Closed meetings of public bodies are permitted only for one or more of the purposes specified in the Virginia Freedom of Information Act (FOIA), § 2.2-3711 (A). Any exemption from public access to meetings or records shall be narrowly construed.

A TRC or District Board may go into closed session to discuss personal and proprietary information regarding an RMP. Section 2.2-3711 of the Code of Virginia authorizes a closed

meeting for discussion or consideration of personal and proprietary information related to the resource management plan program and subject to the exclusion in (i) subdivision 25 of Code §

1. 2-3705.6 or (ii) subsection E of Code § 10.1-104.7. This exclusion shall not apply to the discussion or consideration of records that contain information that has been authorized for release by the person who is the subject of the information. It also does not apply to information that has been transformed into statistical or aggregate form that does not allow identification of the person who supplied, or is the subject of, the information.

This exclusion will allow the TRC or District Board to go into closed session to discuss only the portions of an RMP that are considered personal and proprietary information. Any motion to recommend a plan or decline a plan by the TRC, or to approve or decline a plan by the District Board, must happen in open session. The vote must also occur in open session. Members may state on the record why they voted the way they did, but may not reveal any personal or proprietary information. The meeting minutes for the open session must be in writing and must capture: (i) the date, time, and location of the meeting; (ii) the members of the public body recorded as present and absent; and (iii) a summary of the discussion on matters proposed,

deliberated, or decided, and a record of any votes taken (§ 2.2-3707 (H) of the Code of Virginia).

When the meeting becomes open, the plan should be referenced by the plan number. Only redacted plans should be allowed in the open meeting. If the person who is subject of the information has authorized release of such information, the exemption no longer applies.

Going Into Closed Meetings:

1. A motion by a public body to hold a Closed Meeting must specifically state the purpose(s) for the session and reasonably identify the subject matters to be discussed.

Specific reference must be made to the statutory authority for the Closed Meeting. A general reference alone is not sufficient. § 2.2-3712 (A) of the Code of Virginia. *See sample motion 1 below.

1. Nothing may be discussed in the Closed Meeting except matters included in the motion to go into Closed Meeting. § 2.2-3712 (C) of the Code of Virginia.

(DCR-VSWCB-036) (09/18) 8

• Page 9 ---

1. Minutes during a Closed Meeting are not required, and if taken are not subject to public disclosure. § 2.2-3712 (I) of the Code of Virginia.

1. Only public body members and those individuals with relevant information useful in the plan review process invited by the public body shall be included in the Closed Meeting. § 2.2-3712 (F) of the Code of Virginia.

1. Though not specifically required by law, an estimated time to reconvene should be announced or included in the motion so that the public will know when to return.

• Sample Motion 1

I move the [public body] go into Closed Meeting in accordance with the Virginia

Freedom of Information Act § 2.2-3711 (A) (45) for discussion or consideration of personal and proprietary information excluded from the provisions of this chapter pursuant to (i) subdivision 25 of § 2.2-3705.6 or (ii) subsection E of §10.1-104.7, Review of a Resource Management Plan.

This closed meeting will be attended only by members of the [public body]. However, pursuant to § 2.2-3712 (F), the [public body] requests [ex. the RMP developer for plan # XXX. to also attend this meeting, as it believes their presence will reasonably aid the [public body] in its consideration of topics that are the subject of the meeting.

Coming Out of Closed Meetings:

1. At the conclusion of any closed meeting, the public body must reconvene into the open meeting. § 2.2-3712 (D) of the Code of Virginia.

1. The public body must have a roll call and recorded vote of a motion to be

included in the minutes that states the members in the Closed Meeting heard, discussed or considered only: **See sample motion 2 below

(1) Public business matters specifically identified in the original motion to convene into Closed Meeting AND (2) Public business matters lawfully exempted from open meeting requirements. § 2.2-3712 (D) of the Code of Virginia.

1. A Certification of Closed Meeting that becomes a part of the official minutes must be adopted when the open meeting reconvenes. This resolution assures the public body fulfills the obligations set forth in FOIA. (See attached Certification example.)

(DCR-VSWCB-036) (09/18) 9

• Page 10 ---

1. Any resolution, motion, or decision made during the Closed Meeting must be presented and voted on during an open meeting of the public body. §§ 2.2-3711(B) and 2.2-3712(H) of the Code of Virginia.

1. Any member of the public body who believes that there was a departure from the requirements of clauses 2. (1) and (2) outlined above shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body. § 2.2-3712 (D) of the Code of Virginia. [The Certification of Closed Meeting document included below may be used to certify the meeting].

• Sample Motion 2

Pursuant to the § 2.2-3712 (D) of the Code of Virginia, I move to certify that, to the best of each member’s knowledge, only matters lawfully exempted and identified in the motion by which the Closed Meeting was convened were heard or discussed by this [public body] during the Closed Meeting. (This motion is considered a Certification of a Closed Meeting)

I move for the adoption of resolution #[X], Certification of Closed Meeting, which confirms that only those matters that were identified and lawfully exempted were discussed during the Closed Meeting. (A sample Certification is included below.)

Certification of Closed Meeting

MEETING DATE: ____________

RESOLUTION # _____________

MOTION:

WHEREAS, the [public body] has convened a closed meeting on this date pursuant to an affirmative recorded vote and in accordance with the provisions of The Virginia Freedom of Information Act; and

WHEREAS, § 2.2-3712 of the Code of Virginia requires a certification by the [public body] that a closed meeting was conducted in conformity with Virginia law;

NOW, THEREFORE, BE IT RESOLVED that the [public body] hereby certifies that, to the best of each member’s knowledge, (i) only public business matters lawfully exempted from open meeting requirements by Virginia law were discussed in the closed meeting to which this certification resolution applies, and (ii) only such public business matters as identified in the motion convening the closed meeting were heard, discussed or considered by the [public body].

MOTION BY: ____________________

(DCR-VSWCB-036) (09/18) 10

• Page 11 ---

SECOND BY: ____________________

VOTES (requires roll call vote)

AYES:

NAYS: [For each nay vote, the substance of the departure from the requirements of the Act should be described]

ABSENT DURING VOTE:

ABSENT DURING MEETING: _________________________ Secretary of [public body]

2. OPEN MEETING GUIDELINES FOR DISCUSSION OF A RESOURCE

MANAGEMENT PLAN

A TRC or District Board may redact personal information from the information packet and conduct the entire meeting in an open meeting. Confidential information regarding voluntary BMPs must also be redacted. In an open meeting, the RMP must be referenced only by a plan number and personal and proprietary information must be protected from disclosure to the public.

If the TRC or District Board reviews or discusses personal or proprietary RMP information in an open meeting, District staff should mask or otherwise redact personal information (name, address, etc.) from the RMP packet before it is copied and provided to the TRC. To the extent it is possible to redact other identifying information without compromising the TRC's ability to evaluate the RMP, District staff should do so.

Each RMP should have an assigned plan number to be referenced in public meetings of the TRC and District Board.

Staff should attach a cover page or header reminding the TRC or District Board that disclosure of identifying information is prohibited by law.

TRC and District Board members should be reminded at the meeting that personal and proprietary information is protected from disclosure and that they should tailor their discussion accordingly. The following announcement, or one like it, would be appropriate: "It is prohibited by law to disclose personal or proprietary identifying information of an RMP applicant.

Members are reminded to take care to ensure that identifying information is not disclosed."

In open meetings where the public is present, reference should be made to page/line numbers ("the BMP identified on page 4, line 10" or "the acreage identified on page 7 line 2", etc.) to the extent reasonably possible. Common sense should be utilized to discuss each RMP in a fashion that will not reveal personal or proprietary information of the protected individuals.

(DCR-VSWCB-036) (09/18) 11

• Page 12 ---

1. DELEGATION OF RMP APPROVAL TO A SINGLE INDIVIDUAL Following development of a recommendation by the TRC, and in lieu of action by the full District Board, a District Board may delegate RMP approval to a single individual who would approve the RMP outside of a meeting. District directors "may delegate to their chairman or to one or more district directors, agents or employees such powers and duties as they may deem proper." § 10.1-533 of the Code of Virginia. A District Board is therefore empowered to delegate to one director, agent, or employee the power and duty of RMP approval. [It is strongly recommended that such actions should be reported back to the District Board and be reflected in District Board minutes, in accordance with the delegation charge, to ensure continuity of RMP records.]

MEETING PACKETS FOIA requires that "[a]t least one copy of the proposed agenda and all agenda packets and,

unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body." (§ 2.2-3707 (F) of the Code of Virginia). However, the protected RMP documents printed for the TRC and District Board (unless properly redacted) need not be provided to the public. Because the information remains protected after a meeting, it is also advisable that the packets provided to the members be collected at the close of a meeting.

V Adoption, Amendments, and Repeals:

This document will remain in effect until repealed or superseded.

(DCR-VSWCB-036) (09/18) 12

• Page 1 ---

VIRGINIA SOIL AND WATER CONSERVATION BOARD GUIDANCE

DOCUMENT ON FREEDOM OF INFORMATION ACT REQUIREMENTS

FOR RESOURCE MANAGEMENT PLANS PROGRAM IMPLEMENTATION

BY SOIL AND WATER CONSERVATION DISTRICT BOARDS AND

TECHNICAL REVIEW COMMITTEES

Approved May 20, 2015 (Effective July 1, 2015); revised September 27, 2018

This guidance to RMP review authorities outlines procedures to protect personal, proprietary, and confidential info while complying with FOIA (§2.2-3700 et seq.) and closed meeting allowances in §§ 2.2-3711(A)(45) and 10.1-104.7(E).

Electronic Copy:

An electronic PDF of this guidance is available on the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact the Department of Conservation and Recreation’s Division of Soil and Water at rmp@dcr.virginia.gov or 804-371-0297 for questions about this guidance.

This guidance sets standard procedures for Virginia’s Soil and Water Conservation Districts and TRCs administering the RMP Program for VSWCB and the Department. It offers general interpretation of applicable laws but is not exhaustive; each situation may vary.

require additional interpretation of the Resource Management Plans Act and attendant regulations.

(DCR-VSWCB-036) (09/18) 1

• Page 2 ---

FOIA Requirements for RMP Review by District Boards and TRCs

I. Background: The RMP program promotes voluntary conservation practices to improve farming and water quality, encouraging farmers to use BMPs that reduce runoff and may enhance financial outcomes.

Section 4VAC50-70-70(A) states that upon completing a new or revised RMP per 4VAC50-70-50 and 4VAC50-70-60, the owner, operator, or RMP developer shall submit it for review.

authority."

Section 4VAC50-70-70(B) requires each soil and water conservation district to establish a TRC, which reviews RMPs to ensure they meet standards in 4VAC50-70-40 and other components.

4VAC50-70-50.”

4VAC50-70-10 defines TRC as a committee established by a Soil and Water Conservation District Board to review RMPs and advise the Board.

Virginia FOIA §2.2-3705.6(25) exempts proprietary info provided by landowners under RMPs, and §10.1-104.7(E) exempts personal and proprietary info collected under the Act.

FOIA exemptions apply unless specifically permitted. Virginia §2.2-220.3 states info from voluntary agricultural and silvicultural actions is confidential and FOIA-exempt.

TRCs and District Boards are public bodies; their meetings are open unless discussing personal or proprietary info, which may be discussed in closed meetings per §§ 2.2-3711(A)(45) and 10.1-104.7(E).

This guidance clarifies procedures for TRCs and District Boards on managing and discussing personal, proprietary, and confidential RMP info.

(DCR-VSWCB-036) (09/18) 2

• Page 3 ---

II. Definitions

"Closed meeting" means a meeting excluding the public. (Code §2.2-3701)

“Department” means the Department of Conservation and Recreation.

“Director” means the individual responsible for the Department of Conservation and Recreation’s operations.

“Meeting” or “Meetings" means the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708 or 2.2-3708.1, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than

three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. The gathering of employees of a public body shall not be deemed a "meeting" subject to the provisions of this chapter. (Pursuant to § 2.2-3701 of the Code of Virginia)

"Open meeting" or "public meeting" means a meeting at which the public may be present. (Pursuant to § 2.2-3701 of the Code of Virginia)

"Operator" means a person who exercises managerial control over the management unit. (Pursuant to 4VAC50-70-10)

"Owner" means a person who owns land included in a management unit. (Pursuant to 4VAC50-70-10)

“Public body” includes legislative bodies, authorities, boards, bureaus, commissions, districts, or agencies of the Commonwealth or subdivisions, including

Includes cities, towns, counties, municipal councils, school boards, planning commissions, higher education boards, and other public-supported organizations, including committees or subcommittees performing delegated or advisory functions, regardless of private or citizen membership. (Code §2.2-3701)

“Review authority” is a soil and water conservation district or department authorized under RMP regulations to assess plan adequacy and perform related duties.

4VAC50-70-10)

"RMP developer" means an individual who meets the qualifications established by this chapter to prepare or revise a resource management plan. (Pursuant to 4VAC50-70-10)

(DCR-VSWCB-036) (09/18) 3

• Page 4 ---

"Soil and water conservation district" or "district" means a political subdivision of the Commonwealth organized in accordance with the provisions of Chapter 5 (§ 10.1-500 et seq.) of Title 10.1 of the Code of Virginia. (Pursuant to 4VAC50-70-10)

“Technical Review Committee” or “TRC” means a committee established by a soil and water conservation district board to review RMPs and advise the board. TRC may include district directors, associates, and personnel;

Virginia Cooperative Extension personnel, nutrient management specialists, and other technical resources available to the district. (Pursuant to 4VAC50-70-10)

III. Authority:

The Resource Management Plan Act (§ 10.1-104.7) contains authorities applicable to this guidance:

§ 10.1-104.7 Resource Management Plans; effects; exclusions.

E. Personal or proprietary information collected under this article is exempt from FOIA, except when transformed into statistical or aggregate form that prevents identification. This does not preclude FOIA application in other federal or state regulatory actions. Pursuant to subdivision A 45 of § 2.2-3711, public bodies may hold closed meetings to discuss records excluded from FOIA.

The FOIA Act (§ 2.2-3700) contains authorities

applicable to this guidance:

§ 2.2-3705.6 Exclusions from chapter; proprietary records, trade secrets.

Information in a public record excluded from mandatory disclosure but may be disclosed at custodian's discretion unless prohibited by law: ….

Proprietary information provided by landowners to DCR, DEQ, Agriculture, or political subdivisions under §§ 10.1-104.7, 10.1-104.8, 10.1-104.9, unless required for regulatory enforcement.

(DCR-VSWCB-036) (09/18) 4

• Page 5 ---

§ 2.2-3711. Closed meetings authorized for certain limited purposes.

A. Public bodies may hold closed meetings only for the following purposes: ….

45. Discussing or considering personal and proprietary information related to the resource management plan program, subject to exclusion in subdivision 25 of §

1. 2-3705.6 or (ii) subsection E of § 10.1-104.7. This exclusion shall not apply to the discussion or consideration of records that contain information that has been certified for release by the person who is the subject of the information or transformed into a statistical or aggregate form that does not allow identification of the person who supplied, or is the subject of, the information.

Consider maintaining confidentiality of RMP information on voluntary actions by agricultural and silvicultural sectors.

§ 2.2-220.3. Development of strategies to collect land use and conservation information.

The Secretary of Natural Resources, with assistance from the Secretary of Agriculture and Forestry, shall establish and maintain a database of the critical data attributes for onsite best management practices implemented in the Commonwealth that limit the amount of nutrients and sediment entering state waters. The database shall document voluntary actions taken by the agricultural and silvicultural sectors and should enable the application of the collected data towards projections of progress towards Virginia's water quality goals by sharing the data with the appropriate federal or state agencies. To the extent possible or appropriate, the database shall (i) be uniform in content and format to applications in the other states of the Chesapeake Bay watershed, (ii) maintain the confidentiality of information, and (iii) use existing methods of data collection including reports to the U.S. Department of Agriculture's Farm Service Agency, soil and water conservation districts, and localities for the purpose of land use valuation. Any information collected pursuant to this section shall be exempt from the Freedom of

Information Act (§ 2.2-3700).

The Resource Management Plans Regulations contain authorities applicable to this guidance:

4VAC50-70-70. Review of a Resource Management Plan.

A. After completing a new or revised RMP per 4VAC50-70-50 and 4VAC50-70-60, the owner, operator, or developer shall submit it to the review authority. If the developer is a district employee or board member, the department acts as review authority.

B. Each district shall establish a TRC. RMPs are referred to the TRC for review to ensure they meet standards in 4VAC50-70-40 and components in 4VAC50-70-50. The TRC then recommends to the district board.

(DCR-VSWCB-036) (09/18) 5

• Page 6 ---

IV. Discussion and Interpretation:

The Department’s regulations (4VAC50-70-10 et seq.) require a District to establish a TRC to review RMPs and recommend to the District Board, which votes on the RMP. During review, personal and proprietary information must be protected.

RMP.

FOIA [§ 2.2-3705.6 (25) of the Code of Virginia] provides an exclusion for information of a proprietary nature furnished by an agricultural landowner or operator pursuant to an RMP, and the Resource Management Plans Act [§ 10.1-104.7 (E) of the Code of Virginia] specifies that any personal or proprietary information collected pursuant to the Act shall be exempt from

FOIA, except where specifically permitted in accordance with the section. Further, § 2.2-220.3 of the Code of Virginia specifies that information collected pursuant to voluntary actions taken by the agricultural and silvicultural sectors shall be maintained as confidential and is also exempt from FOIA.

To prevent disclosure of protected information, closed meetings for RMPs are authorized in § 2.2-3711 (A)(45) and § 10.1-104.7 (E).

For the purposes of the closed meeting exemption, "personal information" should be understood as information that reveals the identity of the applicant or location of the tract: for example, any and all maps or geographic references. The applicant's suite of BMPs (including the specifics of each component) is not “proprietary information” so long as those BMPs, and any associated soil studies and other information, are not linked to the applicant or the tract's location thus the release of such information would not inhibit a business or have an economic impact on it should such information be generally disclosed. Where a FOIA question arises, the Districts should

consult with legal counsel at the Office of the Attorney General.

Documents provided by owners/operators are FOIA-exempt and should not be released. Other documents with personal or proprietary info should be withheld or redacted. Districts should consult legal counsel on disclosures.

Items not subject to FOIA: General Information

• Any 1619 information (farm, tract, and field) [available as a USDA Section 1619 Cooperator]; and
• Social security numbers and tax id numbers.

Specific RMP Information

• RMP-1 and RMP-2 BMP applications/approvals/contracts;

• RMPs and associated documents and plans;
• Farm assessment for an RMP;
• Attachments (pdf, pics, etc) to an RMP;

(DCR-VSWCB-036) (09/18) 6

• Page 7 ---

• Maps developed for an RMP; and
• RMP data contained in the Conservation Planning and RMP Modules.

Items containing protected personal or proprietary info that must be redacted if released:

• RMP inspection documents;
• RMP corrective action agreements;
• Emails and letters related to RMP development, review, certificate issuance, modification, and revocation;

• RMP developer applications; and
• Any RMP developer information except what is on the Department’s website.

Law permits RMP info release only in statistical or aggregate form by the Director or with subject certification. FOIA requests for RMPs or applicant lists must be responded to promptly, citing law, and referring requesters to the Department.

FOIA requires all public body meetings to be open unless exempted.

A District Board and a TRC are public bodies under FOIA, as a committee advising a public body

(despite including citizen members).

Under § 2.2-3711 (A)(45), discussions of personal and proprietary info excluded from FOIA under § 2.2-3705.6 or § 10.1-104.7 may occur in closed meetings or other protective options.

A TRC or District Board may use one or more of three options to discuss the RMP, but approval votes must always occur in open meetings. Guidance follows:

1. A TRC or District Board may enter closed session to discuss personal and proprietary RMP information, minimizing disclosure risk.

proprietary, or confidential information.)

1. A TRC or District Board may redact confidential info from packets and hold open meetings referencing plans only by number.
2. A District Board may delegate RMP approval to a single individual after TRC review, with actions reported back to the Board.

(DCR-VSWCB-036) (09/18) 7

• Page 8 ---

District Board records must reflect this for continuity.

1. CLOSED MEETING GUIDELINES FOR DISCUSSION OF PERSONAL AND

PROPRIETARY INFORMATION ASSOCIATED WITH A RESOURCE

MANAGEMENT PLAN

Closed meetings are permitted only for purposes in FOIA § 2.2-3711 (A), and exemptions are narrowly interpreted.

A TRC or District Board may enter closed session to discuss personal and proprietary RMP info, authorized by Section 2.2-3711.

meeting to discuss personal and proprietary info related to the RMP program, per exclusion in subdivision 25 of Code §

1. 2-3705.6 or § 10.1-104.7 excludes records authorized for release or transformed into non-identifiable statistical or aggregate data.

The exclusion allows closed session discussion of personal/proprietary RMP info. Recommendations, votes, and member statements must occur in open session, with minutes recording date, location, members present, and discussion summary.

and a record of votes as per § 2.2-3707 (H).

In open meetings, reference plans by number; only redacted plans are permitted unless the subject has authorized release, removing exemption.

Going Into Closed Meetings:

1. A public body’s motion to hold Closed Meeting must specify purpose(s) and reasonably identify discussion topics.

Statutory authority for Closed Meeting must be specifically cited, per § 2.2-3712 (A). *See sample motion 1.

1. Only matters in the motion may be discussed in the Closed Meeting. § 2.2-3712 (C).

(DCR-VSWCB-036) (09/18) 8

• Page 9 ---

1. Closed Meeting minutes are optional and not publicly disclosed. § 2.2-3712 (I).

1. Only public body members and relevant invited individuals may attend Closed Meetings. § 2.2-3712 (F).

1. Although not required, an estimated reconvene time should be announced or included in the motion.

• Sample Motion 1

I move the [public body] enter Closed Meeting per Virginia law.

Move to Closed Meeting under FOIA § 2.2-3711 (A)(45) for personal/proprietary info excluded under § 2.2-3705.6 or §10.1-104.7, RMP review.

Only public body members attend, but per § 2.2-3712 (F), the RMP developer for plan #XXX may also attend to assist in discussion.

Coming Out of Closed Meetings:

1. After a closed meeting, the public body must reconvene openly. § 2.2-3712 (D).

1. The public body must have a roll call and recorded vote of a motion to be

Minutes must record members' hearing, discussion, or consideration only: **See sample motion 2.

(1) Public business matters specifically identified in the original motion to convene into Closed Meeting AND (2) Public business matters lawfully exempted from open meeting requirements. § 2.2-3712 (D) of the Code of Virginia.

1. A Certification of Closed Meeting must be adopted during reconvening, ensuring FOIA compliance. (See example.)

(DCR-VSWCB-036) (09/18) 9

• Page 10 ---

1. Decisions from Closed Meetings must be presented and voted on openly. §§ 2.2-3711, 2.2-3712(H).

1. Members alleging departure must state it before voting, with the statement recorded. Certification form may be used. § 2.2-3712.

• Sample Motion 2

I move to certify, per § 2.2-3712 (D), that only exempted, motion-identified matters were discussed in the Closed Meeting.

I move to adopt resolution #[X], Certification of Closed Meeting, confirming only identified, exempted matters were discussed.

Certification of Closed Meeting

MEETING DATE: ____________

RESOLUTION # _____________

MOTION:

The [public body] convened a closed meeting by recorded vote per Virginia FOIA on this date; and

Per § 2.2-3712, the [public body] certifies the meeting conformed with Virginia law;

Resolved: the [public body] certifies only exempted, motion-identified matters were discussed in the closed meeting, per Virginia law.

MOTION BY: ____________________

(DCR-VSWCB-036) (09/18) 10

• Page 11 ---

SECOND BY: ____________________

VOTES (requires roll call vote)

AYES:

NAYS: describe each departure from Act requirements.

ABSENT DURING VOTE:

ABSENT: _________________________ Secretary of [public body]

2. OPEN MEETING GUIDELINES FOR DISCUSSION OF A RESOURCE

MANAGEMENT PLAN

A TRC or District Board may redact personal info and conduct meetings openly. RMPs are referenced by plan number; personal/proprietary info must be protected.

If the TRC or District Board reviews or discusses personal or proprietary RMP information in an open meeting, District staff should mask or otherwise redact personal information (name, address, etc.) from the RMP packet before it is copied and provided to the TRC. To the extent it is possible to redact other identifying information without compromising the TRC's ability to evaluate the RMP, District staff should do so.

Each RMP must have a plan number for public meetings reference.

Staff should attach a cover page or header reminding the TRC or District Board that disclosure of identifying information is prohibited by law.

TRC and District Board members should be reminded during meetings that personal and proprietary information is protected, e.g., "It is prohibited by law to disclose personal or proprietary identifying information of an RMP applicant.

Members are reminded to ensure identifying information is not disclosed."

In open meetings, reference page/line numbers (e.g., "BMP on page 4, line 10") as feasible, and use common sense to avoid revealing personal or proprietary info.

(DCR-VSWCB-036) (09/18) 11

• Page 12 ---

1. Following TRC recommendation, a District Board may delegate RMP approval to a single individual outside meetings. Delegations should be reported and recorded in minutes for continuity.

FOIA requires at least one copy of the proposed agenda and all agenda packets,

Unless exempt, materials given to public body members must be available for public inspection simultaneously, but protected RMP documents need not be shared unless redacted; packets should be collected after meetings.

V Adoption, Amendments, and Repeals:

This document will remain in effect until repealed or superseded.

(DCR-VSWCB-036) (09/18) 12

• Page 1 ---

VIRGINIA DAM SAFETY

PROGRAM ENFORCEMENT

MANUAL

Division of Dam Safety and Floodplain Management 600 East Main Street 24th Floor

Richmond, VA 23219-2064

(804) 225-2549

Guidance Adopted September 7, 2016 (DCR-VSWCB-041) This document will remain in effect until rescinded or superseded.

_______________________________ _______________________________ Daphne W. Jamison Clyde E. Cristman Board Chair DCR Director

(DCR-VSWCB-041) (09/16) 1

• Page 2 ---

Table of Contents

PART I. OVERVIEW OF ENFORCEMENT PROGRAM 4

INTRODUCTION 4

I.1. MISSION AND PURPOSE 5

I.2. SCOPE OF ENFORCEMENT ACTIONS 5

I.3. NATURE OF ENFORCEMENT ACTIONS 5

PART II. THE ENFORCEMENT PROCESS 6

II.1. ROLE OF THE VIRGINIA SOIL AND WATER

CONSERVATION BOARD 6

II.2. ADMINISTRATIVE ENFORCEMENT 6

II.2.1. INFORMAL ADMINISTRATIVE ENFORCEMENT 7

II.2.2. FORMAL ADMINISTRATIVE ENFORCEMENT 8

II.3. JUDICIAL ENFORCEMENT 10

II.3.1. CIVIL JUDICIAL ENFORCEMENT 10

II.3.2. CRIMINAL JUDICIAL ENFORCEMENT 11

II.4. VIRGINIA ADMINISTRATIVE PROCESS ACT 11

DAM SAFETY ENFORCEMENT FLOWCHART 14

APPENDICES ERROR! BOOKMARK NOT DEFINED.

A. DELEGATIONS OF AUTHORITY 15

(DCR-VSWCB-041) (09/16) 2

• Page 3 ---

B. GUIDANCE APPLICABLE TO THE NOTICE OF DEFICIENCY

REPORT 22

C. GUIDANCE APPLICABLE TO SPECIAL ORDERS 28

D. GUIDANCE FOR ASSESSING CIVIL PENALTIES 36

E. GUIDANCE APPLICABLE TO INFORMAL FACT-FINDING

PROCEEDINGS 39

F. GUIDANCE APPLICABLE TO FORMAL HEARINGS 47

G. GUIDANCE APPLICABLE TO LITIGATION REFERRALS 58

H. GUIDANCE APPLICABLE TO EMERGENCY PROCEDURES 60

(DCR-VSWCB-041) (09/16) 3

• Page 4 ---

PART I. OVERVIEW OF ENFORCEMENT PROGRAM

INTRODUCTION

The purpose of the Dam Safety Enforcement Manual is to provide the Department of Conservation and Recreation (DCR) staff with guidance for enforcing the Virginia Dam Safety Program pursuant to the Virginia Dam Safety Act and the Virginia Impounding Structure Regulations (Regulations). The Manual also helps dam owners and other interested persons to understand how DCR enforces the Virginia Dam Safety Program. The guidance in the Manual does not carry the force of law; it is intended to provide a framework for ensuring fair and consistent

enforcement of the Virginia Dam Safety Program throughout the Commonwealth.

This Manual is not intended and cannot be relied on to create any rights, substantive or procedural, on the part of any person or entity. DCR reserves the right to modify this guidance at any time without public notice. In addition, DCR may deviate from this guidance as it deems necessary to carry out the intent of the Virginia Dam Safety Act and Regulations.

The Manual comprises three parts. Part I is an overview of the enforcement process. Part II generally describes how the process works and refers the reader to the appropriate guidelines for implementing each part of the enforcement process as well as providing a flowchart illustrating the stages in the enforcement process. The Manual’s Appendices include guidelines for implementing specific parts of the enforcement process.

(DCR-VSWCB-041) (09/16) 4

• Page 5 ---

I.1. Mission and Purpose

The Virginia Dam Safety Program’s mission is to protect the lives and property of the Commonwealth’s citizen’s from natural and manmade flooding.1 The purpose of the enforcement process is to fulfill the Program’s mission by ensuring that regulated dams are operated and maintained in compliance with the Virginia Dam Safety Act and Virginia Impounding Structure Regulations and that any unsafe conditions that may threaten life or property are corrected and removed in accordance with the Act and Regulations.2

I.2. Scope of Enforcement Actions

The Virginia General Assembly enacted the Virginia Dam Safety Act which confers upon the Soil and Water Conservation Board (Board) the duty to enforce the Act and Regulations3 and the power to take administrative enforcement actions and to seek judicial sanctions against violators.4

I.3. Nature of Enforcement Actions

DCR enforcement actions in the Dam Safety Program will be timely, predictable, and include sanctions when appropriate. DCR recognizes that its goal of effective enforcement may be accomplished in most cases through informal means by offering compliance assistance to dam owners and working with them to ensure that any noncompliance is corrected. Nonetheless, DCR will use the full range of its enforcement authority as needed to deter violations and ensure that its mission to protect the lives and property of the Commonwealth’s citizen’s from

natural and manmade flooding is fulfilled.

1 4 VAC 50-20-20.A

2 Va. Code § 10.1-604, et seq.

3 Virginia Code § 10.1-60. The Virginia Impounding Regulations are codified at 4 VAC 50-60- et seq.

4 Virginia Code §§ 10.1-60.

(DCR-VSWCB-041) (09/16) 5

• Page 6 ---

PART II. THE ENFORCEMENT PROCESS

II.1. Role of the Virginia Soil and Water Conservation Board

The Virginia Dam Safety Act confers upon the Board the power to take administrative and legal actions to enforce the Act’s provisions and to ensure compliance.5 At its December 11, 1991 meeting, the Board delegated to DCR by unanimous resolution all matters concerning inspections of dams and enforcement of the Virginia Dam Safety Program.6 On September 7, 2016, the Board reaffirmed by unanimous motion the delegation of authority. The delegation does not remove the Board’s authority to enforce the Act.

As a practical matter, the delegation means that DCR assumes primary responsibility for implementing the enforcement process described in Part II of this Manual with respect the Virginia Dam Safety Program. At the same time, the Board retains authority to enforce the Program, should it choose to do so. In addition, the Board may approve specific enforcement actions, issue Orders, or conduct hearings.

II.2. Administrative Enforcement

DCR is responsible for ensuring that the regulated community complies with the Virginia Dam Safety Program requirements. To accomplish this responsibility, DCR monitors compliance at regulated dams and offers compliance assistance when needed.

The goal of compliance assistance is to help the dam owner to comply voluntarily. Toward that end, DCR provides education, training,

and technical guidance. DCR works closely with dam owners to help them remove any unsafe conditions at the dam and comply with Program requirements. When compliance assistance is unsuccessful, DCR initiates the enforcement process.

The majority of DCR enforcement actions are resolved by DCR through the administrative enforcement process and do not require judicial action. Administrative enforcement actions may be resolved by using

5 Va. Code §§ 10.1-603.2:1 and – 603.2:1.3.

6 Copies of the delegations of authority are included in Appendix A to this Manual.

Pursuant to Va. Code § 10.1-605.1, the Board may delegate any of the powers and duties vested by the Virginia Dam Safety Act except for the adoption and promulgation of regulations.

Delegation shall not remove from the Board authority to enforce the provisions of the Act.

(DCR-VSWCB-041) (09/16) 6

• Page 7 ---

either an informal or a formal process depending on the facts and circumstances of the particular case.

The administrative enforcement process described below is outlined in the Virginia Dam Safety Act and Regulations. The process is streamlined in order to achieve the greatest level of compliance possible within the regulated community of dam owners in the shortest time while making the best use of DCR’s limited resources. Specific guidelines for implementing each part of the process are included the manual’s Appendices.

II.2.1. Informal Administrative Enforcement In an effort to leverage limited resources, DCR staff may exercise professional judgment regarding the circumstances

surrounding an enforcement action and choose to resolve noncompliance informally. DCR staff works cooperatively with dam owners to solve complex compliance and enforcement problems.

As part of the informal enforcement process, DCR staff may conduct an initial informal enforcement meeting with dam owners to help them better understand their responsibilities with respect to the dam's care and maintenance and to those residents downstream of the dam. At the initial meeting, staff explains how the Virginia Dam Safety Program works including the Program's mission, purpose, and regulatory requirements. In addition, DCR staff discusses dam failures including how and why a dam failure happens, relevant compliance issues, and the enforcement process.7

By means of informal enforcement efforts, DCR staff seeks to find shared goals with dam owners and to negotiate resolutions that ensure regulated dams are returned to compliance in conformance with Virginia law and Program requirements. In the informal enforcement stage, DCR staff may ask that the dam owner voluntarily provide a written plan and schedule for removing unsafe conditions at the dam, and staff works with the owner to begin the process of meeting program requirements.

7 The Division Director, Enforcement Manager, Regional Engineer and other staff work as a team at the initial enforcement meeting to educate dam owners in understanding how the Program works.

(DCR-VSWCB-041) (09/16) 7

• Page 8 ---

II.2.2. Formal Administrative Enforcement Under circumstances where a dam owner does not or is unable to voluntarily comply with the requirements set forth in the Virginia Dam Safety Act and Regulations, the General Assembly has provided that DCR may undertake enforcement actions to

bring the dam into compliance with the law. The Virginia Dam Safety Act outlines the enforcement process that DCR will undertake depending on the conditions at the dam.8

As an initial step in the enforcement process, DCR will discern the condition of the dam. DCR may use the dam’s Annual Inspections Reports or other information in order to establish that the dam is operating in an unsafe condition.9 Pursuant to the Act, a dam may be designated as unsafe if there are serious deficiencies in the dam’s design, construction, or physical condition that if left unaddressed could result in loss of life or damage property or if the design, construction, operation, or maintenance of the dam is such that its expected performance during flooding conditions threatens its structural integrity.10

• Unsafe dam presenting imminent danger

If the unsafe dam presents an imminent danger and the owner does not take immediate action to correct the problem, the Governor has authority to take immediate, appropriate action, without a hearing, to remove the imminent danger. The Attorney General may bring an action against the owner of the impounding structure for recovering the Commonwealth’s expenses in removing the danger. 11

• Unsafe dam presenting non-imminent danger It is more often the case that an unsafe dam presents a non-imminent danger that if not corrected could threaten life or property. In this circumstance, DCR may pursue administrative

8 Va. Code §§ 10.1-607 - 10.1-609.

9 Va. Code § 10.1-607.

10 Va. Code § 10.1-607.1.

11 Va. Code § 10.1-608.

(DCR-VSWCB-041) (09/16) 8

• Page 9 ---

enforcement action to return the dam to compliance.12

• Notice of Deficiency Report In the first stage of the formal administrative enforcement process, the Board issues a Notice of Deficiency Report to the dam owner with findings and recommendations for correcting the deficiencies that are creating the unsafe condition. The Notice of Deficiency Report also includes a schedule for correcting the deficiencies.13

• Special Order

If the dam owner fails to comply with the recommendations in the Board’s Notice of Deficiency Report, the Report will serve as the basis for the next step in the administrative enforcement process, which is a Special Order issued by the DCR Director. The Special Order includes an account of the facts of the case, citations to applicable law, alleged violations, and an appended schedule of compliance for performing corrective actions.

In addition to requiring that the dam owner correct the dam’s deficiencies, the Special Order may also require either that the water level in the impoundment be lowered or that the impoundment be drained of its contents until the unsafe condition is corrected. If necessary, the Director may cause the impoundment to be lowered or drained at the owner’s expense.14

• Civil penalties The formal administrative enforcement process is intended to result in a legally binding obligation on the part of the regulated party to comply with the law or submit to a sanction, or both. The Board has authority as part of the administrative enforcement process to assess civil penalties for violations of the Dam Safety Act up to $500 per day not to exceed a maximum of $25,000.15

12 Va. Code § 10.1-609.

13 Va. Code § 10.1-609.

14 Va. Code § 10.1-609.

15 Va. Code § 10.1-613.2. Guidelines for assessing civil charges are in Appendix D of this Manual.

(DCR-VSWCB-041) (09/16) 9

• Page 10 ---

• Injunctive relief Finally, under circumstances where a dam owner fails to comply with a Special Order, the Board may file a law suit seeking an injunction from a court against the dam owner to remove or modify the dam. If the owner does not comply with the injunction, the Board may implement the injunctive relief at the owner’s expense.16 See Section II.3.1 below.

II.3. Judicial Enforcement

The Virginia Dam Safety Act provides for civil and criminal sanctions

against violators.17 The Board may choose to pursue violations of the Act and Regulations and any Board-issued Certificate or Order through the courts.

At the request of the Board or the Director, or both, the Office of the Attorney General of Virginia represents the Board, the Director, and DCR in any civil action to impose civil judicial sanctions.18 It is the responsibility of the Office of the Commonwealth’s Attorney to represent program authorities other than DCR, including the localities and the Soil and Water Conservation Districts.19 In addition, the Commonwealth’s Attorney may seek criminal judicial sanctions against violators of the Act and Regulations.

II.3.1. Civil Judicial Enforcement Under the Virginia Dam Safety Act, the Board may seek injunctive relief20 or civil penalties or both. Law suits seeking injunctive relief or civil penalties are filed a court of competent jurisdiction in the name of the Commonwealth.21

16 Va. Code § 10.1-613.

17 Va. Code §§ 10- 613 and 10.1-613.1.

18 Va. Code § 2.2-507 and § 10- 613.

19 Va. Code § 2.2-507.A provides that “Upon the request of the local attorney for the Commonwealth, the Attorney General may provide legal service in civil matters for the soil and water conservation district directors or districts.”

20 An injunction is a judicial remedy requiring the person to whom it is directed to do or refrain from doing a particular thing.

21 Va. Code § 10.613.

(DCR-VSWCB-041) (09/16) 10

• Page 11 ---

The Board may file suit to compel compliance with an Order issued by the Board (e.g., Special Order; temporary Stop Work Order) or seek an injunction against a dam owner, or other person or legal entity, enjoining any unlawful construction, modification, operation or maintenance of a dam. If the court orders that the dam be modified or removed, the dam owner must bear the expense to remove or modify the dam. If the owner does not comply with the injunction, the Board may implement the injunctive relief at the owner’s expense.22

Should the Board be required to implement and carry out the action, the Board shall charge the owner for any expenses associated with the action, and if the repayment is not made within 90 days after written

demand, the Board may bring an action in the proper court to recover this expense. The Board shall file an action in the court having jurisdiction over any owner or the owner's property for the recovery of such costs. A lien in the amount of such costs shall be automatically created on all property owned by any such owner at or proximate to such dam or reservoir.23

Guidelines for referring a case for civil judicial action to the Office of the Attorney are provided in Appendix G of this Manual.

II.3.2. Criminal Judicial Enforcement

Under the Virginia Dam Safety Act, violators with the requisite criminal intent may be subject to serious criminal sanctions including penalties imposed by a court. Alleged violations may be prosecuted by the Commonwealth’s Attorney in the locality where the alleged criminal act occurred.24

II.4. Virginia Administrative Process Act

The Virginia Administrative Process Act25 supplements the Virginia Act with procedures for adopting regulations, adjudicating or deciding cases

22 Va Code § 10.1-613.

23 Va Code § 10.1-613.

24 Va Code § 10.1-613.1.

25 Va Code § 2.2-4000, et seq.

(DCR-VSWCB-041) (09/16) 11

• Page 12 ---

(e.g., making a decision on a certificate or permit application or an enforcement matter) and for judicial review of Agency action.26

When acting in an adjudicative or decision-making role with respect to enforcement matters, the Board may need to make a determination as to whether a regulated party is in violation of any law, regulation, or permit.27 The Administrative Process Act defines this kind of determination as a case decision. 28 Case decisions are a necessary component of the enforcement process. The Special Order discussed in Section II.1.2 above is an example of a case decision.

The procedures applicable to making case decisions are intended to ensure

that fair treatment is afforded to the regulatory community as guaranteed by the Constitution of Virginia.29 To that end, the Administrative Process Act requires, among other things, that the decision-maker (e.g., the Board or DCR) conduct an informal fact-finding proceeding or a formal hearing, depending on the circumstances, prior to issuing any case decision. 30 These proceedings allow the regulated party an opportunity to be heard before any decision is made affecting his or her interests.31

Typically, routine case decisions are made pursuant to an informal fact-finding proceeding. The Board may hold the proceeding on its own initiative or at the request of a party seeking the case decision (i.e., the dam owner). The dam owner and the agency may agree to waive the informal fact-finding proceeding

26 The Administrative Process Act is, in turn, supplemented by the Virginia Supreme Court’s procedural rules for judicial review of Agency action.

27 Virginia’s courts interpret this definition broadly to include any specific application by the government of facts to law.

28 Virginia Code § 2.2 – 4001 defines “case or “case decision” to mean “any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.”

29 Constitution of Virginia, Article I, Section 11, stating that “no person shall be deprived of his life, liberty, or property without due process of law.”

30 Virginia Code §§ 2.2 -4019 and -4020.

31 As noted above, the enforcement process is designed so that the majority of enforcement actions are resolved by consent and thus do not require an informal fact-finding proceeding or a formal hearing.

(DCR-VSWCB-041) (09/16) 12

• Page 13 ---

and go directly to a formal hearing. In either case, the proceeding is designed to enable the decision-maker to reach a fully-informed decision based on the facts and the law.

Guidelines applicable to informal fact-finding proceedings and an outline of the process for conducting an informal fact-finding proceeding are provided in Appendix E. Guidelines for conducting a formal hearing and outline of the process are included in Appendix F.

(DCR-VSWCB-041) (09/16) 13

• Page 14 ---

Dam Safety Enforcement Flowchart

REGULATED

DAM

DETERMINE CONDITION OF

DAM/IMMINENT OR NON

IMMINENT UNSAFE

CONDITION

NOTIFY GOVERNOR;

IF DAM OWNER DOES NO NONIMMIN

NOT REMOVE UNSAFE

ENT

CONDIT ION DCR

UNSAFE

REMOVES UNSAFE

CONDITION AND YES

REQUESTS AG

RECOVER COSTS

ISSUE NOTICE OF

END DEFICIENCY TO DAM

OWNER

WORK WITH DAM

OW NER TO ENSURE

COMPLIANCE WITH

NOTICE OF

DEFICIENCY

YES

DAM OWNER

END

COMPLIES

WITH NOTICE?

NO

ISSUE SPECIAL ORDER

TO DAM OWNER

WORK WITH DAM

OWNER TO ENSURE

END

COMPLIANCE WITH

SPECIAL ORDER

NO YES

DCR

DECOMMISSIONS DAM OWNER

END

DAM AND REQUESTS COMPLIES

AG RECOVERS WITH

14

• Page 15 ---

Appendices

Appendix A

Delegations of Authority

(DCR-VSWCB-041) (09/16) 15

• Page 16 ---

Virginia Soil and Water Conservation Board Minutes of the December 11, 1991 Meeting Page 10 of 11*

NOW, THEREFORE BE IT RESOLVED that the Virginia Soil and Water Conservation Board hereby delegated to the Director of the Department of Conservation and recreation, or his designee, the authority to act in place of the Board in all matters concerning inspections of Dams and enforcement of the Dam Safety law and Regulations, accepting only the issuance of permits and certificates, the promulgation of regulations and the conduct of hearings.” [sic]

Ex-Officio Alternates for 1992

A motion was made by Mr. Copeland requesting Division staff send letters to ex-officio members to request their designated alternatives for 1991. The motion was seconded by Ms. Campbell and carried.

NACD Annual Convention – Reno, Nevada, February, 1992

Upon a motion made by Mr. Wells, seconded by Mr. Johnson and carried, Dr.

Hancuff was appointed as a second representative from the Board to attend the national Association of Conservation Districts Annual Convention to Reno, Nevada, February 2-6, 1992. Chairman Townsend will also attend the convention.

Other Business

Mr. Wells advised that the Board had received an invitation to attend Agri-tech ’92 July 9-10, 1992 in Blacksburg and made a motion that the Board hold its regular July meeting at the Blacksburg Marriott on July 8 in conjunction with Agri-Tech ’92. The Motion was seconded by Mr. Johnson and carried.

Ms. Campbell made a motion that the Board endorse the Virginia Association of Soil and water Conservation Districts 1992-1994 Legislative Proposals for Conservation and Water Quality Programs which strongly supports the following five important programs the address the state’s soil conservation and water quality concerns (1) Chesapeake Bay Basin Nonpoint Source Pollution Control, (2) Outside Chesapeake Bay Basin Nonpoint Source Pollution Control, (3) Soil Survey Mapping, (4) Flood Protection Fund, (5) Flood Control Structures. The motion was seconded by Mr. Copeland and carried.

The next meeting of the Virginia Soil and Water Conservation Board will be held at 9:00 a.m., Thursday, January 16, 1992 at the Colonial Farm Credit office Building in Mechanicsville, Virginia.

• This document is a retyped duplicate of the original, which could not be reproduced as a photocopy.

(DCR-VSWCB-041) (09/16) 16

• Page 17 ---

(DCR-VSWCB-041) (09/16) 17

• Page 18 ---

(DCR-VSWCB-041) (09/16) 18

• Page 19 ---

Virginia Soil and Water Conservation Board September 7, 2016 Virginia Department of Forestry Charlottesville, Virginia

MOTION to Reaffirm Dam Safety Program Delegations of Authority

WHEREAS, at a meeting of the Virginia Soil and Water Conservation Board [Board] on December 11, 1991, the Board resolved to hereby delegate “to the Director of the Department of Conservation and Recreation, or his designee, the authority to act in place of the Board in all matters concerning inspections of dams and enforcement of the Dam Safety Law and Regulations, excepting only the issuance of permits and certificates, the promulgation of regulations and the conduct of hearings.” WHEREAS, in 2006, § 10.1-605.1 of the Code of Virginia regarding Delegation of Powers and Duties was promulgated [Chapter 30 of the 2006 Virginia Acts of Assembly] to state that “[t]he Board may delegate to the Director or his designee any of the powers and duties vested in the Board by this article, except the adoption and promulgation of regulations or the issuance of certificates. Delegation shall not remove from the Board authority to enforce the provisions of this article.”

WHEREAS, at a meeting of the Board on November 18, 2010, in accordance with § 10.1-605.1, the Board further delegated “the power and duty to issue Construction Permits and Alteration Permits for impounding structures to the Director of the Department of Conservation and Recreation or his designee”.

WHEREAS, in 2011, § 10.1-605.1 of the Code of Virginia regarding Delegation of Powers and Duties was amended [Chapter 323 of the 2011 Virginia Acts of Assembly] to state “[t]he Board may delegate to the Director or his designee any of the powers and duties vested in the Board by this article, except the adoption and promulgation of regulations. Delegation shall not remove from the Board authority to enforce the provisions of this article. …” This legislative action specifically removed the prohibition to the Board delegating authority for “the issuance of certificates” to the Director or his designee.

WHEREAS, at a meeting of the Board on May 24, 2011, in accordance with § 10.1-605.1, the Board further delegated “the power and duty to issue Regular, Conditional, and Extensions of Operation and Maintenance Certificates for impounding structures to the Director of the Department of Conservation and Recreation or his designee, effective July 1, 2011”.

WHEREAS, § 10.1-605 A of the Code of Virginia, states that “[t]he Board shall adopt regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated”.

IT IS THEREFORE RESOLVED and REAFFIRMED by the Board, that the Director of the Department of Conservation and Recreation or his designee, in accordance with § 10.1-605.1 of the Code of Virginia, shall have all of the powers and duties vested in the Board by the Dam Safety Act (§ 10.1-604 et seq. of the Code of Virginia), except the adoption and promulgation of regulations. Such powers and duties shall include the administration, implementation, and enforcement of the Impounding Structure Regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated. Delegation shall

(DCR-VSWCB-041) (09/16) 19

• Page 20 ---

not remove from the Board authority to enforce the provisions of the Act and the attendant regulations.

Motion made by: Jerry L. Ingle

Motion seconded by: Richard A. Street Action: Unanimous

_______________________________ _______________________________ Daphne W. Jamison Clyde E. Cristman Chair DCR Director

(DCR-VSWCB-041) (09/16) 20

• Page 21 ---

Appendix B

Guidance Applicable to the Notice of Deficiency Report

(DCR-VSWCB-041) (09/16) 21

• Page 22 ---

B. GUIDANCE APPLICABLE TO THE NOTICE OF DEFICIENCY REPORT

It is DCR’s mission to protect public safety by ensuring that regulated dams in the Commonwealth are operated and maintained in a safe condition in accordance with the law.32 The Virginia Dam Safety Act outlines the administrative enforcement process that DCR will undertake if a dam is designated as unsafe.33

As an initial step in the enforcement process, DCR may use the dam’s Annual Inspections Reports or other information in order to establish that the dam is operating in an unsafe condition.34 Pursuant to the Act, a dam may be designated as unsafe if there are serious deficiencies in the dam’s design, construction, or physical condition that if left unaddressed could result in loss of life or damage property or if the design, construction, operation, or maintenance of the dam is such that its expected performance during

flooding conditions threatens its structural integrity.35

Under circumstances where an unsafe dam presents a non-imminent danger that if not corrected could threaten life or property the Virginia Soil and Water Conservation Board (Board) issues a Notice of Deficiency Report to the dam owner with findings and recommendations for correcting the deficiencies that are creating the unsafe condition.36 The Notice of Deficiency Report also includes a schedule for correcting the deficiencies.

The Dam owner may submit his or her own plan and schedule to address the Report’s recommendations and schedule. At this stage of the enforcement process, DCR staff will meet with the dam owner to discuss the corrective actions and negotiate the schedule.

DCR works closely with Dam Owners who are facing costly corrective actions and who act in good faith to comply with the Report’s recommendations and schedule. In an effort to work with the dam owner, DCR may revise the recommended corrective actions or schedule at the owner’s request, if the plan and schedule are sufficient to address the deficiencies at the dam.37 In addition, DCR may revise the schedule as needed depending

on the facts and circumstances of the case.38

32 Va. Code § 10.1-604 et seq. and 4 VAC 50-20- et seq.

33 Va. Code §§ 10.1-607, - 10.1-609, and 4 VAC 50-20-220.

34 Va. Code § 10.1-607. It is important that the DCR staff gather sufficient evidence throughout the enforcement process sufficient to support the enforcement action. 35 Va. Code § 10.1-607.1.

36 Va. Code § 10.1-609.

37 4 VAC 50-20-220.C.

38 DCR staff, including Regional Engineers and other technical staff, provides technical support as requested in order to resolve the case including inspection reports, inundation maps, and recommendations for corrective action items necessary to bring the dam into compliance with the law. The Enforcement Manager communicates with DCR staff as needed, keeping them informed of significant events in the case.

(DCR-VSWCB-041) (09/16) 22

• Page 23 ---

If the dam owner fails to comply with the recommendations in the Board’s Report, the Report will serve as the basis for the next step in the administrative enforcement process, which is a Special Order issued by the DCR Director. In addition to requiring that the dam owner correct the dam’s deficiencies, the Special Order may require, among other things, either that the water level in the impoundment be lowered or that the impoundment be drained of its contents until the unsafe condition is corrected. If necessary, the Director may cause the impoundment to be lowered or drained at the owner’s expense.39

The Notice of Deficiency Report is not a case decision as defined by the Virginia Administrative Process Act and, as such, is not subject to appeal in the courts and does not entitle the recipient to any additional due process prior to issuance.40 The purpose of

a Report is to notify the dam owner of the unsafe condition at the dam, the applicable law, and the potential consequences for failing to address the situation.

An example of a Notice of Deficiency Report with a Schedule of Compliance is attached to this Guidance.

39 Va. Code § 10.1-609.

40 Virginia Code § 2.2 – 4001 defines “case” or “case decision” to mean “any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.”

(DCR-VSWCB-041) (09/16) 23

• Page 24 ---

EXAMPLE

NOTICE OF DEFICIENCY REPORT

May 26, 2016

Mr. and Mrs. Dam Owner 534 Beautiful Lake Lane Lakeside, Virginia 22222

Re: Notice of Deficiency Report Beautiful Lake Dam Inventory # 121212

Dear Mr. and Mrs. Dam Owner:

Thank you for submitting the annual safety inspection report authorized by the Virginia Dam Safety Act, VA. CODE ANN. § 10.1-607 (2006), and the preliminary engineering report (PER) for the Beautiful Lake Dam (Dam) in Lakeside, Virginia. The results of the inspection report and PER indicate that the Dam is operating in an unsafe condition that, if not corrected, could threaten life or property.

The purpose of this Deficiency Report is to notify you pursuant to the Dam Safety Act, VA. CODE ANN. § 10.1-609, of apparent deficiencies with respect to the Dam’s unsafe condition and the Virginia Soil and Water Board’s recommendations for correcting the deficiencies. The Board’s recommendations are included in the schedule

of compliance attached to this Deficiency Report.

As we discussed during our meeting of May 16, 2016, pursuant to the Dam Safety Act, VA. CODE ANN. § 10.1-609, as owner of the Dam, you are required to implement the recommendations in the Report in accordance with the schedule of compliance in order to correct the deficiencies that are creating the Dam’s unsafe condition. Under the law, failure on your part to implement the recommendations may result in the issuance of a Special Order by the Director of Department of Conservation and Recreation (DCR) directing implementation of the schedule of compliance. A Special Order issued in accordance with the Act, VA. CODE ANN. § 10.609, may authorize the lowering or complete draining of the impoundment at your expense until the Dam’s unsafe condition is corrected.

The Notice of Deficiency Report is not a case decision as defined by the Virginia Administrative Process Act. The purpose of a Report is to notify the dam owner of the unsafe condition at the dam, the applicable law, and the potential consequences for failing to address the situation.

(DCR-VSWCB-041) (09/16) 24

• Page 25 ---

Please call Anne Crosier, the DCR Enforcement Manager, at (804) 225-2549, if you have any questions regarding this Deficiency Report.

Sincerely,

David C. Dowling Deputy Director of Soil and Water Conservation and Dam Safety and Floodplain Management

cc:

(DCR-VSWCB-041) (09/16) 25

• Page 26 ---

VIRGINIA DEPARTMENT OF CONSERVATION AND

RECREATION

DEFICIENCY REPORT

SCHEDULE OF COMPLIANCE

BEAUTIFUL LAKE DAM

1. On or before July 25, 2016, submit to the Virginia Department of Conservation and Recreation (DCR) a plan and construction schedule for correcting deficiencies at the Dam so that any unsafe conditions are removed and the Dam is brought into compliance with the Virginia Dam Safety Act and Regulations.

1. On or before July 25, 2016, install traffic barriers and signage indicating the driveway

is unsafe

1. On or before July 25, 2016, lower the water level in the Lake so that the discharge of the Lake does not occur via the existing deteriorating drain pipe.

1. On or before July 25, 2016, provide documentation to DCR demonstrating that the water level in the Lake has been lowered.

1. It is understood between the parties that inclement weather and other acts of God beyond the Dam owner’s control may require that completion dates be extended. The Dam owner shall notify DCR within 48 hours if the need for an extension arises. In addition, DCR will extend completion dates, as appropriate, during DCR’s permit application review and issuance process.

(DCR-VSWCB-041) (09/16) 26

• Page 27 ---

Appendix C

Guidance Applicable to Special Orders

(DCR-VSWCB-041) (09/16) 27

• Page 28 ---

C. Guidance Applicable to Special Orders

The Notice of Deficiency Report serves as the basis for the final step in the administrative enforcement process, which is a Special Order issued by the DCR Director. Pursuant to Virginia Dam Safety Act, if a dam owner fails or refuses to commence or diligently implement the recommendations for correcting deficiencies to remove the unsafe condition at the dam according to the schedule of compliance appended to the Report, the Director has the authority to issue a Special Order directing the owner to implement the recommendations according to the schedule. 41

DCR works closely with Dam Owners who are facing costly corrective actions and who act in good faith to comply with the Special Order’s recommendations and schedule. In an effort to work with the Dam Owner, DCR may revise the schedule of compliance at the dam owner’s request as needed depending on the facts and circumstances of the case.42

Within thirty days after being served either by personal service or mail with a copy of a Special Order, any dam owner shall have the right to petition the Board for a hearing. As part of the petition, a dam owner may submit to the Board a plan and schedule, consistent with the Virginia Impounding Structure Regulations,43 to address the Report’s recommendations for correcting deficiencies. The Board shall determine if the submitted plan and schedule are sufficient to address deficiencies. A timely filed petition shall stay the effect of the administrative order. 44

The informal fact-finding hearing shall be conducted before the Board or a

designated member thereof pursuant to § 2.2-4019. The Board shall have the authority to affirm, modify, amend or cancel the Special Order. Any owner aggrieved by a decision of the Board after a hearing shall have the right to judicial review of the final Board decision pursuant to the provisions of the Administrative Process Act.45

Dam owners may appeal final Board decisions in any court of competent jurisdiction. The judgments of the courts of original jurisdiction are subject to

41 Va. Code § 10.1-609.A. The schedule may be revised as appropriate.

42 DCR staff, including Regional Engineers and other technical staff, provides technical support as requested in order to resolve the case including inspection reports, inundation maps, and recommendations for corrective action items necessary to bring the dam into compliance with the law. The Enforcement Manager communicates with DCR staff as needed, keeping them informed of significant events in the case. 43 4 VAC 50-20-10 et seq. and Va. Code § 10.1-605. 44 Va. Code § 10.1-609.A.

45 Va. Code § 2.2-4000 et seq. and 10.1-609.A.

(DCR-VSWCB-041) (09/16) 28

• Page 29 ---

appeal by higher courts,46 and dam owners must provide notice to DCR of the appeal within 30 days of the final decision’s date of service, which is either the date the dam owner receives the final decision or the date it was mailed, whichever occurs first.

The Director, upon a determination that there is an unsafe condition at an impounding structure, is authorized to cause the lowering or complete draining of such impoundment until the unsafe condition has been corrected at the owner's expense and prior to any authorization to refill. An owner who fails to comply with the provisions contained in an administrative order of the Department shall be subject to procedures set out in § 10.1-613 and penalties authorized under § 10.1-613.1 and 10.1-613.1.47

If the Director determines that changed circumstances justify reclassifying the

deficiencies of an impounding structure as an imminent danger to life or property after the Board issues the Notice of Deficiency Report, the Director may proceed directly under § 10.1-613 to enforce the Special Order by instituting a proceeding to compel compliance in a court of competent jurisdiction. The dam owner shall have the opportunity to contest the facts that served as the basis for the issuance of the Special Order. 48

An example of a Special Order is attached to this Guidance.

46 Va. Code § 2.2-4026.A. In addition, when any case decision is the subject of an enforcement action in court, it is reviewable by the court as a defense to the action and the judgment shall be appealable as in other cases.

47 Va. Code 10.1-609.C.

48 Va. Code 10.1-609.B.

(DCR-VSWCB-041) (09/16) 29

• Page 30 ---

EXAMPLE

SPECIAL ORDER

ISSUED TO

[DAM OWNER/NAME OF DAM] (Inventory No. )

SECTION A: Purpose

This is a Special Order issued under the authority of Va. Code §§ 10.1-609, -613, and -613.1 by the Director of the Virginia Department of Conservation and Recreation to [Dam Owner] regarding the [Name of Dam] for violations of the Virginia Dam Safety Act and the Virginia Impounding Structure Regulations.

SECTION B: Definitions:

Unless the context clearly indicates otherwise, the following words and terms have the meaning assigned to them below:

1. “Va. Code” means the Code of Virginia (1950), as amended.

1. “Board” means the Soil and Water Conservation Board, a permanent citizens’ board of the Commonwealth of Virginia as described in Va. Code §§ 10.1-104.1, -503, and –603.2:1.

1. “Department” or “DCR" means the Department of Conservation and Recreation, an agency of the Commonwealth of Virginia as described in Va. Code §§ 10.1-101 and –104.1.

1. “Director” means the Director of the Department of Conservation and Recreation.

1. “Order” means this document, also known as a Special Order.

1. “Regulations” mean the Virginia Impounding Structure Regulations codified at § 4 VAC 50-20-10, et seq.

[This section includes other definitions as appropriate.]

SECTION C: Findings of Fact and Conclusions of Law

1. [This section includes an account of the facts and citations to applicable law.]

(DCR-VSWCB-041) (09/16) 30

• Page 31 ---

SECTION D: Agreement and Order

Accordingly the Director, by virtue of the authority granted in Va. Code §10.1-609, orders [Dam Owner] to perform the actions described in Appendix 1 of this Order.

SECTION E: Administrative Provisions

1. The Board or Director may modify, rewrite, or amend the Order on its own motion after providing [Dam Owner] notice and opportunity to be heard. Pursuant to Va. Code § 10.1-613.3, the [Dam Owner] may not bring an action against the Commonwealth, the Board, the Department, or agents or employees of the Commonwealth for the recovery of damages caused by the partial or total failure of the [Dam] or reservoir, or by the operation of the [Dam] or reservoir, or by an act or omission in connection with issuance of enforcement orders related to the operation or maintenance of the [Dam] or reservoir.

1. Pursuant to Va. Code § 10.1-613.4, nothing in this Order shall relieve the [Dam Owner] from any legal duties, obligations, and liabilities resulting from ownership and operation of the [Dam]. The owner shall be liable for

damage to the property of others or injury to persons, including, but not limited to, loss of life resulting from the operation or failure of the [Dam].

Compliance with the Virginia Dam Safety Act, Va. Code § 10.1-604, et seq. does not guarantee the safety of the [Dam] or relieve the [Dam Owner] in case of a [Dam] failure.

1. This Order addresses and resolves those violations specifically addressed herein. This Order shall not preclude the Board or the Director from taking any action authorized by law, including but not limited to: (1) taking any action authorized by law regarding any additional, subsequent, or subsequently discovered violations; (2) seeking subsequent remediation of the [Dam’s] unsafe condition as may be authorized by law; or (3) taking subsequent action to enforce the Order. This Order shall not preclude appropriate enforcement actions by other federal, state, or local regulatory authorities for matters not addressed herein.

Pursuant to Va. Code § 10.1-609.A, the [Dam Owner] may petition the Board for a hearing within 30 days of being served by mail with a copy of the Order.

1. Failure by [Dam Owner] to comply with any of the terms of this Order shall constitute a violation of an Order of the Board. Nothing herein shall waive the initiation of appropriate enforcement actions or the issuance of additional orders as appropriate by the Board or the Director as a result of

(DCR-VSWCB-041) (09/16) 31

• Page 32 ---

such violations. Nothing herein shall affect appropriate enforcement actions by any other federal, state, or local regulatory authority.

1. If any provision of this Order is found to be unenforceable for any reason, the remainder of the Order shall remain in full force and effect.

1. [Dam Owner] shall be responsible for its failure to comply with any of the terms and conditions of this Order unless compliance is made impossible by earthquake, flood, other acts of God, war, strike, or such other occurrence or circumstances beyond the [Dam Owner’s] control. [Dam Owner] shall show that such circumstances were beyond its control and not due to a lack of good faith or diligence on its part. [Dam Owner] shall notify the Director in writing when circumstances are anticipated to occur,

are occurring, or have occurred that may delay compliance or cause noncompliance with any requirement of the Order.

Such notice shall set forth:

a. the reasons for the delay or noncompliance;

b. the projected duration of any such delay or noncompliance;

c. the measures taken and to be taken to prevent or minimize such delay or noncompliance; and

d. the timetable by which such measures will be implemented and the date full compliance will be achieved.

Failure to so notify the Director within a reasonable time of learning of

any condition above, which [Dam Owner] intends to assert will result in the impossibility of compliance, shall constitute a waiver of any claim to inability to comply with a requirement of this Order.

1. This Order is binding on the parties hereto, their successors in interest, designees and assigns, jointly and severally.

1. This Order shall become effective upon execution by the Board.

1. This Order shall continue in effect until the Director or the Board terminates the Order in his or its sole discretion upon 30 days written notice to [Dam Owner]. Termination of this Order, or any obligation imposed in this Order, shall not operate to relieve [Dam Owner] from its obligation to comply with any statute, regulation, permit condition, other order, certificate, certification, standard, or requirement otherwise applicable.

(DCR-VSWCB-041) (09/16) 32

• Page 33 ---

And it is so ORDERED this [date] day of [month], 20[year].

________________________

Director, Department of Conservation and Recreation

(DCR-VSWCB-041) (09/16) 33

• Page 34 ---

APPENDIX 1

SCHEDULE OF COMPLIANCE

[Includes corrective measures, as well as deadlines for completing the measures for example:

The Dam Owner shall:

1. Upon receipt of this Special Order by certified mail, immediately begin to

drain the Lake to a maximum depth of eight feet and maintain the Lake in this drained condition until written authorization is obtained from the Director of DCR to refill the Lake to normal pool level. The draining rate shall be at approximately six inches vertical drop per day and shall be conducted under the supervision and direction of the Dam Owner’s professional engineer. Failure on the part of the Dam Owner to comply with this requirement shall result in the Director causing the Lake to be drained pursuant to these instructions and at the Dam Owner’s expense.

1. On or before September 25, 2016, submit to the Virginia Department of Conservation and Recreation (DCR) a plan and construction schedule for correcting deficiencies at the Dam so that any unsafe conditions are removed and the Dam is brought into compliance with the Virginia Dam Safety Act and Regulations.

1. On or before September 25, 2016, install traffic barriers and signage

indicating the driveway is unsafe.

1. On or before September 25, 2016, lower the water level in the Lake so that the discharge of the Lake does not occur via the existing deteriorating drain pipe.

1. On or before September 25, 2016, provide documentation to DCR demonstrating that the water level in the Lake has been lowered.

1. The Dam Owner shall be responsible at all times for ensuring that no nuisance is created at the Dam and Lake.

1. It is understood between the parties that acts of God such as inclement weather and other circumstances beyond the Dam owner’s control may require that completion dates be extended. The Dam owner shall notify DCR within as reasonable time if the need for an extension arises. In addition, DCR will extend completion dates, as appropriate, during DCR’s

permit application review and issuance process.]

(DCR-VSWCB-041) (09/16) 34

• Page 35 ---

Appendix D

Guidance for Assessing Civil Charges

(DCR-VSWCB-041) (09/16) 35

• Page 36 ---

D. GUIDANCE FOR ASSESSING CIVIL PENALTIES

The Virginia Dam Safety Act provides that the Virginia Soil and Water Conservation Board may assess a dam owner that violates any provision of the Virginia Dam Safety Act a civil penalty of up to $500 per day not to exceed a maximum of $25,000.49

Whether a civil penalty is warranted will depend upon the facts of the case. The purpose of assessing a civil penalty is to act as a deterrent to future noncompliance among the regulated community of dam owners. In order to be effective, the method employed to access a civil charge should be fair, reasonable, and easily understood.

Moreover, the method used should be applied consistently to ensure that dam owners are treated equitably throughout the Commonwealth.

In setting the civil penalty amount, the Virginia Dam Safety Act requires that the Board consider (i) the nature, duration, and number of previous instances of failure by the owner to comply with requirements of law relating to dam safety and the requirements of Board regulations and orders; (ii) the efforts of the owner to correct deficiencies or other instances of failure to comply with the requirements of law relating to dam safety and the requirements of Board regulations and orders that are the subject of the proposed penalty; (iii) the cost of carrying out actions required to meet the requirements of law and Board regulations and orders; (iv) the hazard classification of the dam; and (v) other factors deemed appropriate by the Board.50

The Virginia Dam Safety Act requires that the Board assess all civil penalties by written penalty notice delivered to the dam owner by certified mail or personal service.

The notice states the specific reasons for the penalty, the number of days the Department considers the owner in violation, and the total amount due. Within 30 days after receipt of a copy of the written penalty notice, any owner subject to the civil penalty provisions

shall have the right to petition the Board, in writing, for a hearing. A timely filed petition shall stay the effect of the penalty notice.51

The hearing shall be conducted before the Board or a designated member thereof as an Informal Fact-finding proceeding pursuant to the Virginia Administrative Process Act, §2.2-4019. The Board shall affirm, modify, amend, or cancel the penalty notice within 10 days following the conclusion of the hearing. Any owner aggrieved by a decision of the Board after a hearing shall have the right to judicial review of the final Board decision.52

49 Va. Code § 10.1-613.2

50 Va. Code § 10.1-613.2 51 Va. Code § 10.1-613.2.

52 Va. Code § 2.2-400 et seq.

(DCR-VSWCB-041) (09/16) 36

• Page 37 ---

Dam owners may appeal final Board decisions in any court of competent jurisdiction. The judgments of the courts of original jurisdiction are subject to appeal by higher courts.53 Dam owners must provide notice to DCR of the appeal within 30 days of the final decision’s date of service, which is either the date the dam owner receives the final decision or the date it was mailed, whichever occurs first.54

If any civil penalty has not been paid within 45 days after the final Board decision or court order has been served on the violator, the Board shall request the Attorney General to institute a civil action in the court of any county in which the violator resides or has his principal place of business to recover the amount of the assessment.55

Civil penalties assessed by the Board or the court are paid into the Flood

Prevention and Protection Assistance Fund and shall be used for the administration of the Dam Safety Program, including for the repair and maintenance of dams.56

53 Va. Code § 2.2-4026.A.

54 Va. Code § 2.2-4026.A.

55 Va. Code §10.1-613.2. 56 Va. Code §10.1-613.2 and §10.1-603.17.

(DCR-VSWCB-041) (09/16) 37

• Page 38 ---

Appendix E

Guidance Applicable to Informal Fact-Finding Proceedings

(DCR-VSWCB-041) (09/16) 38

• Page 39 ---

E. GUIDANCE APPLICABLE TO INFORMAL FACT-FINDING

PROCEEDINGS

When acting in an adjudicatory or decision-making role with respect to enforcement actions, the Board is subject to the procedures outlined in the Virginia Administrative Process Act.57 Accordingly, the Board conducts informal fact-finding proceedings in order to hear all of the facts and circumstances surrounding a case before making any “case decision.” 58 As part of its decision-making process, the Board may rely upon public data, documents, and other information and will notify all parties prior to the proceeding of any information upon which the Board intends to rely in arriving at a decision.59

The Board may hold the proceeding on its own initiative or at the request of a

party seeking the case decision (i.e., the dam owner).60 A dam owner may petition the Board for a hearing under the following circumstances: (i) where the Board issues a Special Order to a dam owner directing the owner to correct deficiencies to remove an unsafe condition or to comply with plans; (ii) where the Board issues a Special Order to a dam owner directing the owner to comply with approved plans and specifications for the construction, maintenance or alteration of a dam; (iii) where the Board issues the dam owner a temporary stop work order on a construction or alteration project if the project lacks the required approvals or the work does not comply with approved plans and specifications; and (iv) where the Board has assessed the dam owner a civil penalty by written penalty notice.61

The Board may conduct the above-described hearings as informal-fact finding proceedings pursuant to Va. Code § 2.2 –4019 and may render a final case decision regarding the subject of the hearing. Any owner aggrieved by a decision of the Board after such hearings shall have the right to judicial review of the final case decision.62

57 Va. Code § 2.2-4000, et seq. DCR is subject to the same procedures.

58 The Virginia Administrative Process Act, Va. Code § 2.2-4001, defines “case decision” as “any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.” As a practical matter, DCR is most likely to use the informal fact-finding proceeding to resolve outstanding issues, but the Board may also hold such proceedings in order to render case decisions, as it deems necessary. 59 Va. Code § 2.2-4019.B.

60 The regulated party and the agency may agree to waive the informal fact-finding proceeding and go directly to a formal hearing.

61 Va. Code §10–609.A. ; -610.1.B; -612.1; and -613.2.

62 Va. Code §10–609.A. ; -610.1.B; -612.1; and -613.2.

(DCR-VSWCB-041) (09/16) 39

• Page 40 ---

The regulated party is entitled to the following rights under the Virginia Administrative Process Act: (i) to reasonable notice of the proceedings; (ii) to appear, in person or by counsel or other qualified representative for the informal presentation of factual data, argument or proof in connection with any case; (iii) to notice of any contrary fact basis or information in the possession of the Board that can be relied upon in making an adverse decision; (iv) to a prompt decision by the Board; and (v) to be informed, briefly and in writing, of the factual or procedural basis for an adverse decision.63

The Board may appoint a staff member or other person acting on the Board’s behalf to preside over the informal-fact-finding proceeding, 64 but no one who is or has been substantively involved with the case may preside. The “Presiding Officer” is responsible for resolving any issues that arise prior to the proceeding (e.g., date changes, submissions, etc.), conducting the proceeding, and recommending a decision to the

Board. 65 The individual appointed to serve as Presiding Officer should have some knowledge of the applicable laws and regulations. Pursuant to Va. Code § 2.2-4022, the Presiding Officer, through the Board, may issue subpoenas requiring testimony or the production of books, papers, and physical or other evidence.66

It is the Board’s responsibility to decide the case based on the record, submissions, and recommendations generated from the fact-finding proceeding.67 The case decision that results from an informal fact-finding proceeding is a determination whether or not the regulated party is in compliance with a law, regulation, or permit requirement within the Board’s jurisdiction to enforce. As such, the decision includes no monetary sanction nor directs any action on the part of the regulated party.

The Virginia Administrative Process Act requires that the decision-maker render the case decision within 90 days of the proceeding, although the parties may agree to a later date.68 Agreements to extend the deadline for the decision 90 days should be in

63 Va. Code § 2.2 –4019.A.

64 Va. Code §2.2-4001. The regulated party and DCR may agree at the outset that DCR employ a hearing officer to preside over the informal fact-finding proceeding. Such agreement may be revoked only by mutual consent. Pursuant to Va. Code § 2.2-4024, the Executive Secretary of the Supreme Court prepares and maintains a list of attorneys qualified to preside over informal and formal administrative proceedings. Upon the Director’s request, the Executive Secretary selects a hearing officer from the list to preside over the informal fact-finding proceeding. 65 If a hearing officer acts as Presiding Officer, the appointment letter for the hearing officer should state whether, in addition to conducting the proceeding, he or she is empowered to make a recommendation to the Director. 66 The Director must sign subpoenas.

67 The Director may delegate the decision-making responsibility to another (e.g., the Presiding Officer), but such delegation should be in writing.

68 If a hearing officer serves as Presiding Officer and is empowered to make a recommendation, he or she must provide the recommendation with 90 days of the proceeding. The Director has an additional 30

(DCR-VSWCB-041) (09/16) 40

• Page 41 ---

writing. The regulated party has the right to appeal an adverse case decision to the appropriate court.69

I. Preparing for the Proceeding

J. Scheduling, Notice, Location

1. DCR staff contacts the regulated party in order to reach agreement on the date, time, and place of the proceeding.70

1. DCR staff notifies the regulated party by letter (Notice Letter) of DCR’s intention to conduct the informal fact-finding proceeding. The Notice Letter includes the following information: (i) the date, time, and place for the proceeding; (ii) a list of the regulated party's rights pursuant to the Virginia Administrative Process Act;71 (iii) an explanation of the purpose of the proceeding including the applicable facts and law with respect to each allegation; (iv) a citation to DCR’s legal authority for rendering a case decision on the alleged violations; and (v) a description of any public

data, document or information upon which DCR intends to rely at the proceeding.72

1. DCR staff ensures delivery of the Notice Letter to the Regulated Party 30 days prior to the scheduled date for the proceeding by one of the following three methods: (i) certified mail, return receipt requested; (ii) service of process; or (iii) by hand.

1. DCR staff prepares and submits DCR’s proposed findings of fact and conclusions of law to the Presiding Officer.

days from the receipt of the recommendation to render a decision; otherwise, the Director has 90 days to decide.

69 The Virginia Supreme Court rules govern the appeal. See Va. Code § 2.2 – 4026 and Virginia Supreme Court Rule 2A:2. 70 Absent an agreement with the regulated party, the proceeding will be conducted in the county or city where the regulated party either (i) resides; (ii) regularly or systematically conducts affairs or business activity; (iii) has any property affected by the administrative action; or (iv) if the preceding do not apply, in the county or city where the violations are alleged to have occurred. Va. Code §§ 2.2-4003 and 8.01-261. 71 Virginia Code § 2.2-4019.

72 Virginia Code § 2.2-4019.B.

(DCR-VSWCB-041) (09/16) 41

• Page 42 ---

1. DCR staff arranges for a room in which to conduct the proceeding and for any equipment needed for the presentation.

1. DCR staff arranges to record the proceeding either by making an audiotape recording or by court reporter.

B. Presiding Officer -Appointment and Pre-proceeding Responsibilities

1. DCR staff arranges through consultation with the Director’s Office for the appointment of a Presiding Officer.

1. The Presiding Officer is responsible for coordinating dates changes and requesting any pre-proceeding submissions. Note: The informal fact-finding process does not allow for discovery.

II. The Proceeding

A. Participants, Submissions

1. Participants in the meeting include the Presiding Officer, the DCR staff person making the presentation for DCR, the regulated party and his or her

counsel, and any witnesses.

1. The Presiding Officer directs the course of the proceeding and ensures that the record is sufficiently developed to support the case decision.

1. Participants may submit proposed findings of fact and conclusions of law at the outset of the proceeding.

B. Order of Proceeding

1. The Presiding Officer opens the proceeding and explains to the participants that each party will present his or her case in turn and that each may make an opening statement and call witnesses but that cross examination of witnesses is not allowed.

(DCR-VSWCB-041) (09/16) 42

• Page 43 ---

1. The Presiding Officer directs each party as to when to present his or her case and maintains order throughout the proceeding.

1. DCR, followed by the regulated party, gives a brief statement of the case and calls witnesses to give direct testimony. After witnesses from both sides have testified, DCR makes a brief closing argument, directly

followed by the regulated party with his or her closing argument.

1. Throughout the proceeding, the Presiding Officer asks questions of witnesses to ensure that the record is fully developed and requests additional findings of fact and conclusions of law, if necessary.

1. After each side has finished making a closing argument, the Presiding Officer explains how the decision process works and requests any post-proceeding submissions.

1. The Presiding Officer adjourns the proceeding.

III. Post-Proceeding Matters

A. Recommendation Package

1. The Presiding Officer must deliver the recommendation package to the Board and the parties within 45 days of the informal fact-finding proceeding, unless the parties agree in writing to a later date. Note: If a hearing officer presides, he or she must submit the recommendation package within 90 days of the date of the proceeding.

1. The recommendation for the case decision should include a brief summary of the issues and findings of fact and conclusions of law. The Presiding Officer may adopt either party’s findings of fact and conclusions of law, in

whole or in part, but is not obliged to do so. The recommendation package should also include (i) a list of all those who appeared at the proceeding, (ii) the name and address of all those on whom the final case decision should be served, and (iii) the complete record of the proceeding.

B. Record

(DCR-VSWCB-041) (09/16) 43

• Page 44 ---

1. The Presiding Officer is responsible for assembling the record.

1. Typically, the record comprises (i) the recommended case decision (i.e., a brief summary of the issues and proposed findings of fact and conclusions of law); and (ii) an audiotape or transcript of the proceeding; and (iii) any submissions collected by the Presiding Officer.

IV. The Case Decision

A. Deadlines for Final Decision

1. The Board has 90 days from the date of the proceeding to render a final decision, unless the parties agree to a later date.

1. If a hearing officer presided, the Board has 30 days from the date of receiving the recommendation package, unless the parties agree in writing to a later date. The hearing officer must submit the recommendation package with 90 days of the proceeding.

B. Contents of Final Decision

1. The Board may afford the parties an opportunity to submit comments on or exceptions to the Presiding Officer’s recommendation. This does not extend the deadline for rendering the final decision, unless all the parties agree to a later date.

1. Typically, the case decision is rendered in the form of findings of fact and conclusions of law. The Board may adopt the Presiding Officer’s recommendation in whole or in part or the findings of fact and conclusions of law submitted by one of the parties to the hearing, in whole or in part.

C. Notice to the Regulated Party

1. The Board must notify the regulated party in writing of the case decision.

The Notice should be delivered by certified mail, return receipt requested, within five days of the decision and should include a copy of the final case

(DCR-VSWCB-041) (09/16) 44

• Page 45 ---

decision (i.e., a brief summary of issues and the findings of fact and conclusions of law).

1. The Notice of Decision Letter must inform the regulated party of his or her right to appeal. The following language may be included in the Notice of Decision Letter:

If you intend to appeal this decision to a Virginia court, you must provide notice to the Virginia Department of Conservation and Recreation, Office of the Director, 600 East Main Street, 24th Floor, Richmond, Virginia 23219. As provided by Rule 2A:2 of the Rules of the Supreme Court of Virginia, you have 30 days from the date of service of this decision (either the date you actually received this decision or the date on which it was mailed to you, whichever occurred first) within which to file a Notice of Appeal.

That period of time increases by three days if you receive the

decision by mail.

Please refer to Part Two A of the Rules of the Supreme Court of Virginia for a description of the required contents of the Notice of Appeal and additional requirements governing appeals from the decisions of administrative agencies.

There is a further requirement in 2A:3 that the party includes a transcript of the testimony along with notice.

(DCR-VSWCB-041) (09/16) 45

• Page 46 ---

Appendix F

Guidance Applicable to Formal hearings

(DCR-VSWCB-041) (09/16) 46

• Page 47 ---

F. GUIDANCE APPLICABLE TO FORMAL HEARINGS

The Virginia Dam Safety Act provides that the Virginia Soil and Water Conservation Board (Board) may hold a formal hearing, including the formal taking of evidence upon relevant fact issues, in any case to the extent that informal procedures under §2.2-4019 have not been had or have failed to dispose of the case by consent.73

A party to a formal hearing is entitled to reasonable notice of (i) the hearing’s time and place; (ii) the basic law under which DCR contemplates taking action; and (iii) matters of law and fact asserted or questioned by DCR. In addition, a party to a formal hearing is entitled (i) to be represented by counsel; (ii) to submit and rebut evidence; (iii) to cross examine witnesses; and (iv) to have a prompt decision regarding his or her case.

The full Board or, at a minimum, a quorum of the Board may preside over a formal hearing.74 Unless the Board chooses to preside at the request of the Director or on its own initiative, a hearing officer selected from a list of attorneys maintained by the Executive secretary of the Virginia Supreme Court must preside over a formal hearing.75

Either the Board or the hearing officer employed by the Board, depending on who presides, (“Presiding Officer”) is charged with the following responsibilities with respect to a formal hearing:

• to establish the date, time, and place of the hearing;
• to provide notice of the hearing to all parties;
• to manage the pre-hearing exchange of information so that all parties have

access to the information that may be entered into evidence and to the witnesses that may be called;

• to explain the hearing process to all parties either at a pre-hearing conference or prior to the hearing;
• to manage the transcript and record of the case; and
• on the part of a hearing officer, to make a timely recommendation to the decision-maker; or
• on the part of the Board or DCR, to make a timely decision.

At formal hearings, an Assistant Attorney General presents the case for DCR, unless the Attorney General authorizes a DCR staff person to serve in that role. The

73 Va. Code § 2.2.4020.A.

74 Va. Code § 2.2-4024.F. If a Board member designated by the Chair presides over the formal hearing that Board member may not participate in making the final decision resulting from the hearing.

75 Va. Code § 2.2-4024.A.

(DCR-VSWCB-041) (09/16) 47

• Page 48 ---

regulated party may be represented by counsel. In general, a formal hearing would proceed with the Presiding Officer’s introductory remarks and disposition of preliminary motions; opening statements from DCR and the regulated party; testimony of witnesses, presentation of evidence, and cross examination by both parties; closing arguments; submission of proposed findings of fact and conclusions of law, if not previously submitted; and adjournment.

The Administrative Process Act requires that a verbatim record of the hearing be taken and filed with the Board.76 It is the Presiding Officer’s responsibility to manage the record. DCR, on its own initiative, or at the request of the Board or the Presiding Officer may employ a court reporter in order to ensure that the required verbatim record is clear and accurate.

The decision-maker, which may be either the Board or the Director depending on the circumstances, must render the case decision within 90 days of the proceeding, although the parties may agree to a later date. If a hearing officer serves as Presiding

Officer and is empowered to make a recommendation to the Board or Director, he or she must provide the recommendation with 90 days of the proceeding. The Board or the Director has an additional 30 days from the receipt of the recommendation to render a decision; otherwise, the Board or the Director has 90 days to decide.77 The regulated party has the right to appeal an adverse case decision to the appropriate court.78

Additional guidance in the form of specific procedures for conducting formal hearings is outlined below. The procedures are based on the “Hearing Officer Deskbook, A reference for Virginia Hearing Officers,” published by the Office of the Executive Secretary of the Virginia Supreme Court of Virginia (revised December 2013). The procedures are intended for use by the Virginia Soil and Water Conservation Board or a hearing officer selected from a list of attorneys maintained by the Executive Secretary of the Virginia Supreme Court Supreme who is conducting a hearing for the Board.

76 Va. Code § 2.2-4020 and § 10. 1-603.12:7.

77 Va. Code § 2.2-4021.

78 The Virginia Supreme Court rules govern the appeal. See Va. Code § 2.2 - 4026.

(DCR-VSWCB-041) (09/16) 48

• Page 49 ---

Specific Procedures Applicable to Formal hearing

I. PRE-HEARING ISSUES

J. Scheduling, Notice, and Location

1. The Presiding Officer is responsible for scheduling the hearing. Hearings

should be scheduled at a time convenient to all parties, when possible.79

1. The Presiding Officer should determine the place at which the hearing will be held. All parties must agree to the location; otherwise, the hearing must be conducted in the county or city where the regulated party either (i) resides; (ii) regularly does business; (iii) has property affected by the action; or (iv) if the preceding do not apply, in the County or City where the violations are alleged to have occurred.

1. The Presiding Officer is responsible for providing formal notice of the hearing (Notice Letter) to the parties prior to the hearing.

a. The Notice Letter must be delivered by certified mail, return receipt requested, at least 30 days prior to the hearing.

b. The Notice Letter must state the date, time and place of the hearing; the basic law under which the Board or DCR contemplates taking action; the nature of the hearing (e.g., to revoke a permit), alleged violations and citations to pertinent

law and regulations; and the remedy sought (e.g., issuance of Special Order).

c. The Notice should recite the rights to which a party to the hearing is entitled including (i) to be represented by counsel; (ii) to submit oral and documentary evidence and rebuttal proofs; (iii) to conduct cross examine witnesses as may elicit a fair and full disclosure of the facts; (iv) to submit in writing for

the record proposed findings of fact and conclusions of law; and (v) to have a prompt decision regarding his or her case.

79 The Presiding Officer may be a one of the following, depending on the circumstances: (i) a hearing officer employed by DCR or the Board; (ii) the full Board (iii) a quorum of the Board; or at least one member of the Board designated by the Board Chair to conduct hearings.

(DCR-VSWCB-041) (09/16) 49

• Page 50 ---

1. If the parties agree, the hearing may be held sooner than indicated in the Notice Letter. The Presiding Officer may grant a change in the time, place, or date in order to prevent a substantial delay, expense, or detriment to the public interest, or to avoid undue prejudice to a party.

B. Exchange of Information

1. The Virginia Administrative Process Act does not permit discovery; however, the Presiding Officer may require all parties to exchange the information upon which each intends to rely in making a case, in advance of the hearing.

Information to be exchanged should include a list of witnesses each party intends to call and any documents that may be entered into evidence.

1. The Presiding Officer may set a deadline for the exchange of information and limit the testimony of witnesses and the entry of evidence to that provided in the pre-hearing exchange of information.

C. Pre-hearing Statements and Conferences

1. The Presiding Officer, on his or her own initiative or upon the request of any of the parties, may schedule a pre-hearing conference, with due regard for the convenience of all parties, allowing reasonable notice of the conference’s time, place, and purpose. The conference may be held in person or by telephone, depending on the circumstances.

1. The purposes of a pre-hearing conference are to (i) identify, simplify, and clarify the issues; (ii) afford the Presiding Officer the opportunity to explain hearing procedures and the roles of the parties; and (iii) afford the parties an opportunity to discuss stipulations and admissions of fact and the content and authenticity of documents; disclosure of the number and identities of witnesses; and the possibility of settlement.80

1. The Presiding Officer may require the parties to submit proposed Findings of

Fact and Conclusions of Law in advance of the hearing. Typically, facts are organized chronologically, issue by issue, and supported by evidence in the record. The legal conclusions are organized in the same manner as the facts and are supported by citations to the law or regulations, or both.

D. Subpoenas and Depositions

80 The Presiding Officer may not participate in settlement discussions but may issue a stay upon the request of the parties, if they wish to pursue a settlement.

(DCR-VSWCB-041) (09/16) 50

• Page 51 ---

1. The Presiding Officer may issue subpoenas and subpoenas duces tecum under the signature of the Board or the Director of DCR. The Presiding Officer must issue subpoenas upon request of a party. 81 A subpoena is a command to appear at a certain time and place to give testimony upon a certain matter. A subpoena duces tecum requires production of books, papers, and other things.

1. Depositions may be taken and read as in actions at law.82

E. Ex Parte Communications

1. The Presiding Officer should avoid any ex parte communication (i.e., any exclusive communication) with any party, counsel, or other interested party in an effort to ensure a fair hearing.

1. The Presiding Officer should make note of any ex parte communication that may occur for the record and bring it to the attention of all the parties for comment on the record.

II. The Hearing

A. Failure to Attend

1. A party who fails to attend a pre-hearing conference should be notified of any rulings and given an opportunity to object, whether or not the party

had reasonable notice of the conference.

1. Under circumstances where a party fails to attend the formal hearing without good cause and after having been given reasonable notice pursuant to the Virginia Administrative Process Act, the Presiding Officer may proceed with the hearing and recommendation.

B. Written Statements

81 Va. Code § 10.1-603.12:7.D and § 2.2-4022.

82 Va. Code § 10.1-603.12:7.B and § 2.2-4022.

(DCR-VSWCB-041) (09/16) 51

• Page 52 ---

1. The Presiding Officer may admit written statements from witnesses into the record and should allow parties to exchange all written statements during the exchange of information prior to the hearing.

1. Parties may subpoena a witness who provides a written statement in order to cross examine that witness at the hearing. In addition, advance notice of a written statement during the pre-hearing exchange of information allows a party to formally object to its introduction into evidence.

C. Evidence

1. The Presiding Officer is authorized to receive probative evidence and to rule upon offers of proof. Any evidence may be admitted, if it appears relevant, reliable, and not otherwise improper. The probative weight of hearsay evidence, usually inadmissible under the rules of evidence, is left to the Presiding Officer’s discretion.

1. The Presiding Officer is authorized to exclude irrelevant, immaterial,

insubstantial, privileged, or repetitive proofs, rebuttal or cross examination. The evidence in the record should be sufficient to justify the Presiding Officer’s recommendation and any resulting decision made by the Board or DCR.

D. Experts

1. The Presiding Officer may admit expert testimony into the record. It is within the Presiding Officer’s discretion to qualify an expert and to determine the weight afforded the expert opinion. The Presiding Officer is not bound by any expert’s opinion and, at times, must resolve conflicts between the testimonies of experts.

1. Parties should exchange the names, addresses, and qualifications of any expert that may testify during the pre-hearing exchange of information.

E. Burden and Standard of Proof

(DCR-VSWCB-041) (09/16) 52

• Page 53 ---

1. The burden of proof is on the “proponent or applicant.”83 When pursuing enforcement actions, DCR is the proponent and must provide sufficient evidence to justify the action it seeks, whether the action is to issue an order or to revoke a permit.

1. The standard of proof is similar to “preponderance of the evidence.” In other words, DCR’s case that the action sought is justified must be stronger than the regulated party’s case that the action is unjustified.

F. The General Order of the Proceeding

1. The Presiding Officer opens the proceeding with introductory remarks and disposes of preliminary motions.

1. At the direction of the Presiding Officer, the parties make opening statements. DCR is the first to make an opening statement. The regulated party’s opening statement follows that of DCR.

1. At the direction of the Presiding Officer, each party, in turn, makes its case

by calling witnesses; conducting direct, redirect, cross, and recross examination; and presenting evidence, proofs, and rebuttal. The presiding Officer is authorized to administer oaths and affirmations with respect to witnesses. DCR call its witnesses after which the regulated party calls his or her witnesses.

1. At the direction of the Presiding Officer, the parties make closing argument. DCR is the first to make a closing argument. The regulated party’s closing argument follows that of DCR.

1. At the direction of the Presiding Officer, the parties may submit proposed findings of fact and conclusions of law, if a party has not already done so.

G. The Hearing Record and Transcript

1. A typical record comprises the following items: (i) a letter of appointment for the hearing officer; (ii) the formal notice of the proceeding; (iii) any pre-hearing orders; (iv) any motions, briefs, pleadings, petitions, and

83 Va. Code § 2.2-2040.

(DCR-VSWCB-041) (09/16) 53

• Page 54 ---

intermediate rulings; (v) all evidence introduced, whether admitted or rejected; (vi) a statement of all matters officially noticed; (vii) proffers of proof and objections and rulings thereon; (viii) proposed findings of fact and conclusions of law and requested orders and exceptions; (ix) a transcript of the hearing; (x) any initial order, final order, or order on reconsideration; (xi) matters placed on the record after an ex parte communication; and (xii) any submissions to the Presiding Officer.

1. The Presiding Officer is responsible for assembling and preserving the record. If the Presiding Officer is a hearing officer, he or she remains responsible for the record until submitting it along with the recommendation to the decision-maker.

H. Open Hearings

1. In general, formal hearings are open to the public. Any decision to hold a closed hearing should be made with the consent of either the Board or

DCR.

1. The Presiding Officer may control media and spectator access to the hearing in order to ensure that that the media do not interfere with the dignity and smooth conduct of the hearing.

III. Post-Hearing Issues

A. Additional Submissions

1. The Presiding Officer, on his or her own initiative or at the request of a party, may require additional submissions for the record, including findings of fact and conclusions of law, if none were submitted previously, and briefs on specific issues raised during the hearing.

1. The Presiding Officer may also afford the parties an opportunity to file transcript corrections, amended findings of fact and conclusions of law, memoranda of law in support of proposed findings of fact and conclusions of law, and replies to the opposing party’s findings of fact and conclusions of law.

B. Recommendation Package

(DCR-VSWCB-041) (09/16) 54

• Page 55 ---

1. If the Presiding Officer is a hearing officer empowered to make a recommendation to the decision-maker (i.e., either the Board or the Director of DCR, depending on the circumstances), he or she must deliver to the recommendation to the decision-maker and the parties within 90 days of the hearing, unless the parties agree in writing to a later date.

1. The recommendation for the case decision includes a brief summary of the issues and findings of fact and conclusions of law. The Presiding Officer may adopt either party’s findings of fact and conclusions of law, in whole or in part but is not obliged to do so. The recommendation package should also include a list of all those who appeared at the hearing; the name and address of all those on whom the final decision should be served; a draft order, if appropriate, and the complete record of the hearing.

1. DCR will direct the Presiding Officer as to where to deliver the recommendation package including the complete record of the hearing.

IV. The Case Decision

A. Deadlines for Final Decision

1. The decision-maker has 30 days from the date of delivery of the recommendation to render a final decision, unless the parties agree to a later date.

1. If the Board presides over the hearing, it must render a final decision within 90 days of the hearing, unless the parties agree in writing to a later

date.

B. Contents of Final Decision

1. The decision-maker (i.e., the Board or the Director of DCR) may afford the parties an opportunity to submit comments on or exceptions to the Presiding Officer’s recommendation. This does not extend the deadline for rendering the final decision, unless all the parties agree to a later date.

(DCR-VSWCB-041) (09/16) 55

• Page 56 ---

1. Typically, the case decision is rendered in the form of findings of fact and conclusions of law. The decision-maker (i.e., the Board or the Director of DCR) may adopt the Presiding Officer’s recommendation in whole or in part or the findings of fact and conclusions of law submitted by one of the parties to the hearing, in whole or in part.

C. Notice to the Regulated Party

1. The decision-maker must notify the regulated party in writing of the case decision (Notice of Decision Letter). The Notice of Decision Letter should be delivered by certified mail, return receipt requested, within five days of the decision being rendered and should include a copy of the final case decision (i.e., the findings of fact and conclusions of law).

1. The Notice of Decision Letter must inform the regulated party of his or her right to appeal. The following language may be included in the Notice of Decision Letter:

If you intend to appeal this decision to a Virginia court, you must provide notice to the Virginia Department of Conservation and Recreation, Office of the Director, 600 East Main Street, 24th Floor, Richmond, Virginia 23219. As provided by Rule 2A:2 of the Rules of the Supreme Court of Virginia, you have 30 days from the date of service of this decision (either the date you actually received this decision or the date on which it was mailed to you, whichever occurred first) within which to file a Notice of Appeal. That period of time increases by three days if you receive the decision by mail.

Please refer to Part Two A of the Rules of the Supreme Court of Virginia for a description of the required contents of the Notice of Appeal and additional requirements governing appeals from the decisions of administrative agencies.

There is a further requirement in 2A:3 that the party includes a transcript of the testimony along with notice.

(DCR-VSWCB-041) (09/16) 56

• Page 57 ---

Appendix G

Guidance Applicable to Litigation Referrals

(DCR-VSWCB-041) (09/16) 57

• Page 58 ---

G. GUIDANCE APPLICABLE TO LITIGATION REFERRALS

The Office of the Attorney General of Virginia represents the Board, the Director, and DCR in any civil action to impose civil judicial sanctions.84 Requests for representation in a civil action must come from either the Board or the Director, or both.

Prior to initiating any request for representation, DCR staff will meet informally with Agency Counsel to discuss all aspects of the case in question and determine whether or not it is suitable for referral to the Attorney General for civil action. As a part of the informal discussions, DCR staff will provide the Agency Counsel with any files, documents, photographs, or other evidence necessary to make an informed decision regarding the request.

If, after having discussed all aspects of the case, all concerned agree that the case should be referred for civil action, DCR will submit a referral package to the Attorney General with a formal, written request from the Board or Director, or both, for representation. The referral package will include a memorandum in support of litigation and a copy of the case file. The memorandum will include the names of the dam owners, the violations alleged, and the relief sought by the Commonwealth.

84 Va. Code § 2.2-507.

(DCR-VSWCB-041) (09/16) 58

• Page 59 ---

Appendix H

Guidance Applicable to Emergency Procedures

(DCR-VSWCB-041) (09/16) 59

• Page 60 ---

H. GUIDANCE APPLICABLE TO EMERGENCY PROCEDURES

If an owner or the owner’s engineer has determined that circumstances are impacting the integrity of the impounding structure that could result in the imminent failure of the impounding structure, the owner may initiate temporary repairs prior to Board approval. The owner is required to notify DCR within 24 hours of identifying the problem.85

When the Director finds an unsafe dam constituting an imminent danger to life or property, he shall immediately notify the Department of Emergency Management and confer with the owner who shall activate the Emergency Action Plan or Emergency Preparedness Plan, if appropriate to do so. The owner of a dam found to constitute an imminent danger to life or property shall take immediate corrective action. The dam

owner shall take immediate corrective actions to remove the imminent danger. If the owner does not take appropriate and timely action to correct the danger found, the Governor shall have the authority to take immediate appropriate action, without the necessity for a hearing, to remove the imminent danger. 86

The Attorney General may bring an action against the owner of the impounding structure for the Commonwealth's expenses in removing the imminent danger. There shall be a lien upon the owner's real estate for the Commonwealth's expenses in removing the imminent danger. The owner may avoid the Commonwealth's costs, and recover any damages, upon proving that the dam was known to be safe at the time such action was taken, and that the owner had provided or offered to immediately provide such proof to the Director before the action complained of was taken. Nothing herein shall in any way limit any authority existing under the Emergency Services and Disaster Law. 87

The provisions of subsection A of this section notwithstanding, if the Director determines, after the report is issued, that changed circumstances justify reclassifying the

deficiencies of an impounding structure as an imminent danger to life or property, the Director may proceed directly under § 10.1-613 for enforcement of his order, and the owner shall have the opportunity to contest the fact based upon which the administrative order was issued.

The Director, upon a determination that there is an unsafe condition at an impounding structure, is authorized to cause the lowering or complete draining of such impoundment until the unsafe condition has been corrected at the owner's expense and prior to any authorization to refill.

85 4 VAC 50-20-220. The emergency notification does not relieve the owner of the need to obtain an alteration permit as soon as practicable nor shall the owner take corrective actions beyond those necessary to address the emergency.

86 Va. Code § 10.1-608.

87 Va. Code Va. § 10.1-608 and Code § 44-146.13 et seq.

(DCR-VSWCB-041) (09/16) 60

• Page 1 ---

VIRGINIA DAM SAFETY

PROGRAM ENFORCEMENT

MANUAL

Division of Dam Safety and Floodplain Management 600 East Main Street 24th Floor

Richmond, VA 23219-2064

(804) 225-2549

Guidance Adopted September 7, 2016 (DCR-VSWCB-041) remains in effect until rescinded or superseded.

_______________________________ _______________________________ Daphne W. Jamison Clyde E. Cristman Board Chair DCR Director

(DCR-VSWCB-041) (09/16) 1

• Page 2 ---

Table of Contents

PART I. OVERVIEW OF ENFORCEMENT PROGRAM 4

INTRODUCTION 4

I.1. MISSION AND PURPOSE 5

I.2. SCOPE OF ENFORCEMENT ACTIONS 5

I.3. NATURE OF ENFORCEMENT ACTIONS 5

PART II. THE ENFORCEMENT PROCESS 6

II.1. ROLE OF THE VIRGINIA SOIL AND WATER

CONSERVATION BOARD 6

II.2. ADMINISTRATIVE ENFORCEMENT 6

II.2.1. INFORMAL ADMINISTRATIVE ENFORCEMENT 7

II.2.2. FORMAL ADMINISTRATIVE ENFORCEMENT 8

II.3. JUDICIAL ENFORCEMENT 10

II.3.1. CIVIL JUDICIAL ENFORCEMENT 10

II.3.2. CRIMINAL JUDICIAL ENFORCEMENT 11

II.4. VIRGINIA ADMINISTRATIVE PROCESS ACT 11

DAM SAFETY ENFORCEMENT FLOWCHART 14

APPENDICES ERROR! BOOKMARK NOT DEFINED.

A. DELEGATIONS OF AUTHORITY 15

(DCR-VSWCB-041) (09/16) 2

• Page 3 ---

B. GUIDANCE APPLICABLE TO THE NOTICE OF DEFICIENCY

REPORT 22

C. GUIDANCE APPLICABLE TO SPECIAL ORDERS 28

D. GUIDANCE FOR ASSESSING CIVIL PENALTIES 36

E. GUIDANCE APPLICABLE TO INFORMAL FACT-FINDING

PROCEEDINGS 39

F. GUIDANCE APPLICABLE TO FORMAL HEARINGS 47

G. GUIDANCE APPLICABLE TO LITIGATION REFERRALS 58

H. GUIDANCE APPLICABLE TO EMERGENCY PROCEDURES 60

(DCR-VSWCB-041) (09/16) 3

• Page 4 ---

PART I. OVERVIEW OF ENFORCEMENT PROGRAM

INTRODUCTION

The purpose of the Dam Safety Enforcement Manual is to provide the Department of Conservation and Recreation (DCR) staff with guidance for enforcing the Virginia Dam Safety Program pursuant to the Virginia Dam Safety Act and the Virginia Impounding Structure Regulations (Regulations). The Manual also helps dam owners and other interested persons to understand how DCR enforces the Virginia Dam Safety Program. The guidance in the Manual does not carry the force of law; it is intended to provide a framework for ensuring fair and consistent

enforcement of the Virginia Dam Safety Program throughout the Commonwealth.

This Manual does not create rights and may be modified or deviated from by DCR at any time without notice to fulfill the Virginia Dam Safety Act and Regulations.

The Manual has three parts: Part I overview, Part II describes the process with guidelines and a flowchart, and Appendices provide specific enforcement guidelines.

(DCR-VSWCB-041) (09/16) 4

• Page 5 ---

I.1. Mission and Purpose

The mission is to protect lives and property from flooding. The enforcement process ensures dams comply with the Virginia Dam Safety Act and Regulations, correcting unsafe conditions as needed.

I.2. Scope of Enforcement Actions

The Virginia Dam Safety Act authorizes the Soil and Water Conservation Board to enforce the Act and Regulations and seek sanctions against violators.

I.3. Nature of Enforcement Actions

DCR enforcement actions in the Dam Safety Program will be timely, predictable, and include sanctions when appropriate. DCR recognizes that its goal of effective enforcement may be accomplished in most cases through informal means by offering compliance assistance to dam owners and working with them to ensure that any noncompliance is corrected. Nonetheless, DCR will use the full range of its enforcement authority as needed to deter violations and ensure that its mission to protect the lives and property of the Commonwealth’s citizen’s from

natural and manmade flooding is fulfilled.

1 4 VAC 50-20-20.A

2 Va. Code § 10.1-604, et seq.

3 Virginia Code § 10.1-60. The Virginia Impounding Regulations are codified at 4 VAC 50-60- et seq.

4 Virginia Code §§ 10.1-60.

(DCR-VSWCB-041) (09/16) 5

• Page 6 ---

PART II. THE ENFORCEMENT PROCESS

II.1. Role of the Virginia Soil and Water Conservation Board

The Act grants the Board enforcement powers. In 1991, the Board delegated dam inspection and enforcement authority to DCR, reaffirmed in 2016, without removing Board enforcement rights.

As a practical matter, the delegation means that DCR assumes primary responsibility for implementing the enforcement process described in Part II of this Manual with respect the Virginia Dam Safety Program. At the same time, the Board retains authority to enforce the Program, should it choose to do so. In addition, the Board may approve specific enforcement actions, issue Orders, or conduct hearings.

II.2. Administrative Enforcement

DCR ensures compliance by monitoring regulated dams and providing assistance as needed.

The goal of compliance assistance is to help the dam owner to comply voluntarily. Toward that end, DCR provides education, training,

and technical guidance. DCR works closely with dam owners to help them remove any unsafe conditions at the dam and comply with Program requirements. When compliance assistance is unsuccessful, DCR initiates the enforcement process.

The majority of DCR enforcement actions are resolved by DCR through the administrative enforcement process and do not require judicial action. Administrative enforcement actions may be resolved by using

5 Va. Code §§ 10.1-603.2:1 and – 603.2:1.3.

6 Copies of the delegations of authority are included in Appendix A to this Manual.

Pursuant to Va. Code § 10.1-605.1, the Board may delegate powers and duties under the Virginia Dam Safety Act except for adopting regulations.

Delegation does not remove the Board's authority to enforce the Act.

(DCR-VSWCB-041) (09/16) 6

• Page 7 ---

The process may be informal or formal depending on the case.

The administrative enforcement process described below is outlined in the Virginia Dam Safety Act and Regulations. The process is streamlined in order to achieve the greatest level of compliance possible within the regulated community of dam owners in the shortest time while making the best use of DCR’s limited resources. Specific guidelines for implementing each part of the process are included the manual’s Appendices.

II.2.1. Informal Enforcement DCR staff may exercise judgment to leverage resources based on circumstances

and choose to resolve noncompliance informally. DCR cooperates with dam owners to resolve compliance issues.

As part of the informal enforcement process, DCR staff may conduct an initial informal enforcement meeting with dam owners to help them better understand their responsibilities with respect to the dam's care and maintenance and to those residents downstream of the dam. At the initial meeting, staff explains how the Virginia Dam Safety Program works including the Program's mission, purpose, and regulatory requirements. In addition, DCR staff discusses dam failures including how and why a dam failure happens, relevant compliance issues, and the enforcement process.7

DCR staff aims to find shared goals and negotiate resolutions to return dams to compliance, possibly requesting a written plan and schedule from owners to address unsafe conditions.

7 The Division Director, Enforcement Manager, Regional Engineer and other staff work as a team at the initial enforcement meeting to educate dam owners in understanding how the Program works.

(DCR-VSWCB-041) (09/16) 7

• Page 8 ---

II.2.2. Formal Enforcement When a dam owner fails or cannot voluntarily comply with the Virginia Dam Safety Act and Regulations, DCR may undertake enforcement actions.

bring the dam into compliance with the law. The Virginia Dam Safety Act outlines the enforcement process that DCR will undertake depending on the conditions at the dam.8

DCR will assess dam condition using inspection reports to determine if it is unsafe due to deficiencies risking life, property, or structural integrity during floods.

• Unsafe dam presenting imminent danger

If an unsafe dam poses imminent danger and the owner fails to act, the Governor may take immediate action without a hearing, and the Attorney General may recover expenses from the owner.

• Unsafe dam with non-imminent danger; if uncorrected, it could threaten life or property. DCR may pursue administrative

8 Va. Code §§ 10.1-607 - 10.1-609.

9 Va. Code § 10.1-607.

10 Va. Code § 10.1-607.1.

11 Va. Code § 10.1-608.

(DCR-VSWCB-041) (09/16) 8

• Page 9 ---

enforcement action to restore dam compliance.12

• Notice of Deficiency Report: In the initial enforcement stage, the Board issues a report to the dam owner with findings, recommendations, and a schedule for correcting deficiencies creating the unsafe condition.13

• Special Order

Failure to comply with the Notice of Deficiency leads to a Special Order by the DCR Director, detailing case facts, law citations, violations, and corrective schedule.

The Special Order may require lowering or draining the impoundment until unsafe conditions are fixed; the Director may do so at the owner’s expense.

• Civil penalties: The enforcement process aims to create a legal obligation for compliance or sanctions. The Board can assess penalties up to $500/day, max $25,000.15

12 Va. Code § 10.1-609.

13 Va. Code § 10.1-609.

14 Va. Code § 10.1-609.

15 Va. Code § 10.1-613.2. Guidelines for assessing civil charges are in Appendix D of this Manual.

(DCR-VSWCB-041) (09/16) 9

• Page 10 ---

• Injunctive relief: If a dam owner fails to comply with a Special Order, the Board may seek a court injunction to remove or modify the dam. Non-compliance may lead to the Board executing relief at owner’s expense.16 See Section II.3.1.

II.3. Judicial Enforcement

The Virginia Dam Safety Act provides for civil and criminal sanctions

against violators.17 The Board may pursue violations through courts.

At request, the Attorney General’s Office represents the Board, Director, and DCR in civil actions; Commonwealth’s Attorneys represent other authorities and may seek criminal sanctions.

II.3.1. Civil Enforcement The Board may seek injunctive relief, civil penalties, or both, filed in a court of competent jurisdiction in the name of the Commonwealth.

16 Va. Code § 10.1-613.

17 Va. Code §§ 10- 613 and 10.1-613.1.

18 Va. Code § 2.2-507 and § 10- 613.

19 Va. Code § 2.2-507.A provides that “Upon the request of the local attorney for the Commonwealth, the Attorney General may provide legal service in civil matters for the soil and water conservation district directors or districts.”

20 An injunction is a judicial remedy requiring the person to whom it is directed to do or refrain from doing a particular thing.

21 Va. Code § 10.613.

(DCR-VSWCB-041) (09/16) 10

• Page 11 ---

The Board may sue to enforce its Orders (e.g., Special or Stop Work Orders) or seek an injunction against dam owners or others to stop unlawful dam construction, modification, operation, or maintenance. If court orders dam modification or removal, the owner bears the cost. Non-compliance allows the Board to enforce relief at owner’s expense.

If the Board must implement the action, it shall charge the owner for expenses, and if not repaid within 90 days after written demand, the Board may recover costs in court.

demand, the Board may bring an action in the proper court to recover this expense. The Board shall file an action in the court having jurisdiction over any owner or the owner's property for the recovery of such costs. A lien in the amount of such costs shall be automatically created on all property owned by any such owner at or proximate to such dam or reservoir.23

Guidelines for referring cases for civil judicial action to the Attorney’s Office are in Appendix G of this Manual.

II.3.2. Criminal Judicial Enforcement

Under the Virginia Dam Safety Act, violators with criminal intent may face sanctions, including court penalties. Alleged violations may be prosecuted by the Commonwealth’s Attorney where the act occurred.

II.4. Virginia Administrative Process Act

The Virginia Administrative Process Act25 supplements the Virginia Act with procedures for adopting regulations, adjudicating or deciding cases

22 Va Code § 10.1-613.

23 Va Code § 10.1-613.

24 Va Code § 10.1-613.1.

25 Va Code § 2.2-4000, et seq.

(DCR-VSWCB-041) (09/16) 11

• Page 12 ---

(e.g., making a decision on a certificate or permit application or an enforcement matter) and for judicial review of Agency action.26

When acting in an adjudicative or decision-making role with respect to enforcement matters, the Board may need to make a determination as to whether a regulated party is in violation of any law, regulation, or permit.27 The Administrative Process Act defines this kind of determination as a case decision. 28 Case decisions are a necessary component of the enforcement process. The Special Order discussed in Section II.1.2 above is an example of a case decision.

The procedures applicable to making case decisions are intended to ensure

that fair treatment is afforded to the regulatory community as guaranteed by the Constitution of Virginia.29 To that end, the Administrative Process Act requires, among other things, that the decision-maker (e.g., the Board or DCR) conduct an informal fact-finding proceeding or a formal hearing, depending on the circumstances, prior to issuing any case decision. 30 These proceedings allow the regulated party an opportunity to be heard before any decision is made affecting his or her interests.31

Typically, routine case decisions are made pursuant to an informal fact-finding proceeding. The Board may hold proceedings on its own initiative or at request of a party seeking the case decision (i.e., the dam owner). The dam owner and the agency may agree to waive the informal fact-finding proceeding

26 The Administrative Process Act is, in turn, supplemented by the Virginia Supreme Court’s procedural rules for judicial review of Agency action.

27 Virginia’s courts interpret this definition broadly to include any specific application by the government of facts to law.

28 Virginia Code § 2.2 – 4001 defines “case or “case decision” to mean “any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.”

29 Constitution of Virginia, Article I, Section 11, stating that “no person shall be deprived of his life, liberty, or property without due process of law.”

30 Virginia Code §§ 2.2 -4019 and -4020.

31 As noted above, the enforcement process is designed so that the majority of enforcement actions are resolved by consent and thus do not require an informal fact-finding proceeding or a formal hearing.

(DCR-VSWCB-041) (09/16) 12

• Page 13 ---

or proceed directly to a formal hearing, both designed to enable informed decisions based on facts and law.

Guidelines applicable to informal fact-finding proceedings and an outline of the process for conducting an informal fact-finding proceeding are provided in Appendix E. Guidelines for conducting a formal hearing and outline of the process are included in Appendix F.

(DCR-VSWCB-041) (09/16) 13

• Page 14 ---

Dam Safety Enforcement Flowchart

REGULATED

DAM

DETERMINE CONDITION OF

DAM/IMMINENT OR NON

IMMINENT UNSAFE

CONDITION

NOTIFY GOVERNOR;

IF DAM OWNER DOES NO NONIMMIN

NOT REMOVE UNSAFE

ENT

CONDIT ION DCR

UNSAFE

REMOVES UNSAFE

CONDITION AND YES

REQUESTS AG

RECOVER COSTS

ISSUE NOTICE OF

END DEFICIENCY TO DAM

OWNER

WORK WITH DAM

OW NER TO ENSURE

COMPLIANCE WITH

NOTICE OF

DEFICIENCY

YES

DAM OWNER

END

COMPLIES

WITH NOTICE?

NO

ISSUE SPECIAL ORDER

TO DAM OWNER

WORK WITH DAM

OWNER TO ENSURE

END

COMPLIANCE WITH

SPECIAL ORDER

NO YES

DCR

DECOMMISSIONS DAM OWNER

END

DAM AND REQUESTS COMPLIES

AG RECOVERS WITH

14

• Page 15 ---

Appendices

Appendix A

Delegations of Authority

(DCR-VSWCB-041) (09/16) 15

• Page 16 ---

Virginia Soil and Water Conservation Board Minutes of Dec 11, 1991, p.10/11*

RESOLVED the Board delegates to the Director of DCR, or designee, authority to act in all dam inspection and enforcement matters, excluding permits, regulations, and hearings.

Ex-Officio Alternates for 1992

Mr. Copeland moved to have staff send letters requesting 1991 ex-officio alternatives; seconded by Ms. Campbell and approved.

NACD Annual Convention – Reno, Nevada, February, 1992

Motion by Mr. Wells, seconded by Mr. Johnson, carried. Dr.

Hancuff was appointed as a second Board representative for the NACD Convention in Reno, Feb 2-6, 1992; Chairman Townsend will also attend.

Other Business

Mr. Wells reported the Board received an invitation to Agri-tech ’92 in Blacksburg, and moved to hold July’s meeting at the Blacksburg Marriott on July 8; seconded by Mr. Johnson and approved.

Ms. Campbell moved to endorse VA Soil and Water Conservation Districts’ 1992-94 legislative proposals supporting five programs: Chesapeake Bay Nonpoint Pollution, Outside Bay Pollution, Soil Mapping, Flood Protection Fund, Flood Control Structures; seconded by Mr. Copeland and approved.

Next Board meeting: 9:00 a.m., Jan 16, 1992, at Colonial Farm Credit Building, Mechanicsville, VA.

• This document is a retyped duplicate of the original, which could not be reproduced as a photocopy.

(DCR-VSWCB-041) (09/16) 16

• Page 17 ---

(DCR-VSWCB-041) (09/16) 17

• Page 18 ---

(DCR-VSWCB-041) (09/16) 18

• Page 19 ---

Virginia Soil and Water Conservation Board September 7, 2016 Virginia Department of Forestry Charlottesville, Virginia

Motion to Reaffirm Dam Safety Delegations

On Dec 11, 1991, the Board delegated authority to the DCR Director for dam inspections and enforcement, excluding permits, regulations, and hearings. In 2006, § 10.1-605.1 clarified delegation powers, excluding regulation adoption and certificates, but preserving enforcement authority.

On Nov 18, 2010, the Board delegated authority to issue Construction and Alteration Permits for impounding structures to the DCR Director or designee, per § 10.1-605.1.

In 2011, § 10.1-605.1 was amended to allow delegation of all powers except regulation adoption, removing previous prohibition on delegating certificate issuance.

On May 24, 2011, the Board delegated authority to issue various impounding structure certificates to the DCR Director or designee, effective July 1, 2011, per § 10.1-605.1.

§ 10.1-605 A requires the Board to adopt regulations ensuring proper, safe construction, maintenance, and operation of impounding structures.

The Board reaffirms that the DCR Director or designee, per § 10.1-605.1, holds all Dam Safety Act powers except regulation adoption, including enforcement of Impounding Structure Regulations.

(DCR-VSWCB-041) (09/16) 19

• Page 20 ---

Delegation shall not remove the Board’s enforcement authority.

Motion made by: Jerry L. Ingle

Motion seconded by: Richard A. Street Action: Unanimous

_______________________________ _______________________________ Daphne W. Jamison Clyde E. Cristman Chair DCR Director

(DCR-VSWCB-041) (09/16) 20

• Page 21 ---

Appendix B

Guidance Applicable to the Notice of Deficiency Report

(DCR-VSWCB-041) (09/16) 21

• Page 22 ---

B. GUIDANCE FOR NOTICE OF DEFICIENCY

It is DCR’s mission to protect public safety by ensuring regulated dams in the Commonwealth are operated and maintained safely per law.32 The Virginia Dam Safety Act details the enforcement process DCR will follow if a dam is deemed unsafe.33

Initially, DCR may use Annual Inspection Reports or other info to determine if the dam is unsafe.34 A dam is unsafe if serious deficiencies in design, construction, or condition could cause loss of life or property damage, or if its expected performance during

flooding conditions threatens its structural integrity.35

When an unsafe dam poses a non-imminent danger, the Virginia Soil and Water Conservation Board (Board) issues a Notice of Deficiency Report to the owner with findings, recommendations, and a correction schedule.36

The dam owner may submit a plan and schedule to address the Report’s recommendations. DCR staff will then meet with the owner to discuss and negotiate corrective actions and schedules.

DCR collaborates with dam owners acting in good faith on costly corrections. DCR may revise recommendations or schedules upon owner request or as needed, if sufficient to address deficiencies.37

based on case facts and circumstances.38

32 Va. Code § 10.1-604 et seq. and 4 VAC 50-20- et seq.

33 Va. Code §§ 10.1-607, - 10.1-609, and 4 VAC 50-20-220.

34 Va. Code § 10.1-607. It is important that the DCR staff gather sufficient evidence throughout the enforcement process sufficient to support the enforcement action. 35 Va. Code § 10.1-607.1.

36 Va. Code § 10.1-609.

37 4 VAC 50-20-220.C.

38 DCR staff, including Regional Engineers and technical personnel, provides support such as inspection reports, inundation maps, and corrective recommendations. The Enforcement Manager keeps staff informed of key events.

(DCR-VSWCB-041) (09/16) 22

• Page 23 ---

Failure to comply with the Board’s Report leads to a Special Order by the DCR Director, requiring correction, possibly lowering or draining the impoundment at owner’s expense until safe.39

The Notice of Deficiency Report is not a case decision under the Virginia Administrative Process Act, not subject to court appeal, nor entitling the recipient to additional due process.40 The purpose of

a Report is to notify the dam owner of the unsafe condition at the dam, the applicable law, and the potential consequences for failing to address the situation.

An example Notice of Deficiency Report with Schedule of Compliance is attached.

39 Va. Code § 10.1-609.

40 Virginia Code § 2.2 – 4001 defines “case” or “case decision” to mean “any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.”

(DCR-VSWCB-041) (09/16) 23

• Page 24 ---

EXAMPLE

NOTICE OF DEFICIENCY REPORT

May 26, 2016

Mr. and Mrs. Dam Owner 534 Beautiful Lake Lane Lakeside, Virginia 22222

Re: Notice of Deficiency Report Beautiful Lake Dam Inventory # 121212

Dear Mr. and Mrs. Dam Owner:

Thank you for submitting the annual safety inspection and PER for Beautiful Lake Dam. Results show the Dam is unsafe and could threaten life or property if uncorrected.

This Deficiency Report notifies you under the Dam Safety Act of deficiencies and the Board’s recommendations, included in the attached schedule.

of compliance attached to this Deficiency Report.

As discussed on May 16, 2016, under the Dam Safety Act, you must implement the recommendations per the schedule. Failure may lead to a Special Order requiring correction, possibly lowering or draining the impoundment at your expense until safe.39

The Notice of Deficiency Report is not a case decision under the Virginia Administrative Process Act. Its purpose is to notify the owner of the unsafe condition, law, and potential consequences.

(DCR-VSWCB-041) (09/16) 24

• Page 25 ---

Please contact Anne Crosier, DCR Enforcement Manager, at (804) 225-2549, with questions about this Deficiency Report.

Sincerely,

David C. Dowling Deputy Director of Soil, Water Conservation, Dam Safety, and Floodplain Management

cc:

(DCR-VSWCB-041) (09/16) 25

• Page 26 ---

VIRGINIA DEPARTMENT OF CONSERVATION AND

RECREATION

DEFICIENCY REPORT

SCHEDULE OF COMPLIANCE

BEAUTIFUL LAKE DAM

1. By July 25, 2016, submit to DCR a plan and schedule to correct Dam deficiencies, remove unsafe conditions, and ensure compliance with the Virginia Dam Safety Act and Regulations.

1. By July 25, 2016, install traffic barriers and signage for the driveway

is unsafe

1. By July 25, 2016, lower the Lake water level to prevent discharge via the deteriorating drain pipe.

1. By July 25, 2016, provide DCR documentation showing the Lake water level has been lowered.

1. Parties acknowledge weather and acts of God may delay deadlines; Dam owner must notify DCR within 48 hours of extension need. DCR may extend deadlines during permit review.

(DCR-VSWCB-041) (09/16) 26

• Page 27 ---

Appendix C

Guidance Applicable to Special Orders

(DCR-VSWCB-041) (09/16) 27

• Page 28 ---

C. Guidance Applicable to Special Orders

The Notice of Deficiency Report forms the basis for the final enforcement step—a Special Order issued by the DCR Director. Under Virginia Dam Safety Act, if a dam owner fails or refuses to start or diligently follow the recommendations to correct deficiencies and remove unsafe conditions per the schedule in the Report, the Director may issue a Special Order requiring compliance.

DCR collaborates with Dam Owners facing costly corrections and acting in good faith to comply with the Special Order. DCR may revise the compliance schedule upon the owner’s request based on case circumstances.

Within 30 days of service by personal or mail of a Special Order, a dam owner may petition the Board for a hearing, submitting a plan and schedule per Virginia Impounding Structure Regulations. The Board will assess sufficiency, and a timely petition stays the order.

The informal fact-finding hearing shall be conducted before the Board or a

designated member thereof pursuant to § 2.2-4019. The Board shall have the authority to affirm, modify, amend or cancel the Special Order. Any owner aggrieved by a decision of the Board after a hearing shall have the right to judicial review of the final Board decision pursuant to the provisions of the Administrative Process Act.45

Dam owners may appeal final Board decisions in any court of competent jurisdiction. The judgments of the courts of original jurisdiction are subject to

41 Va. Code § 10.1-609.A. The schedule may be revised as appropriate.

42 DCR staff, including Regional Engineers and other technical staff, provides technical support as requested in order to resolve the case including inspection reports, inundation maps, and recommendations for corrective action items necessary to bring the dam into compliance with the law. The Enforcement Manager communicates with DCR staff as needed, keeping them informed of significant events in the case. 43 4 VAC 50-20-10 et seq. and Va. Code § 10.1-605. 44 Va. Code § 10.1-609.A.

45 Va. Code § 2.2-4000 et seq. and 10.1-609.A.

(DCR-VSWCB-041) (09/16) 28

• Page 29 ---

Dam owners must notify DCR of higher court appeals within 30 days of final decision’s service date, either receipt or mailing, whichever is first.

The Director, upon a determination that there is an unsafe condition at an impounding structure, is authorized to cause the lowering or complete draining of such impoundment until the unsafe condition has been corrected at the owner's expense and prior to any authorization to refill. An owner who fails to comply with the provisions contained in an administrative order of the Department shall be subject to procedures set out in § 10.1-613 and penalties authorized under § 10.1-613.1 and 10.1-613.1.47

If the Director determines that changed circumstances justify reclassifying the

deficiencies of an impounding structure as an imminent danger to life or property after the Board issues the Notice of Deficiency Report, the Director may proceed directly under § 10.1-613 to enforce the Special Order by instituting a proceeding to compel compliance in a court of competent jurisdiction. The dam owner shall have the opportunity to contest the facts that served as the basis for the issuance of the Special Order. 48

An example of a Special Order is attached.

46 Va. Code § 2.2-4026.A. In addition, when any case decision is the subject of an enforcement action in court, it is reviewable by the court as a defense to the action and the judgment shall be appealable as in other cases.

47 Va. Code 10.1-609.C.

48 Va. Code 10.1-609.B.

(DCR-VSWCB-041) (09/16) 29

• Page 30 ---

EXAMPLE

SPECIAL ORDER

ISSUED TO

[DAM OWNER/NAME OF DAM] (Inventory No. )

SECTION A: Purpose

This Special Order, issued under Va. Code §§ 10.1-609, -613, -613.1, by the DCR Director to [Dam Owner] for violations of the Virginia Dam Safety Act and Regulations, concerns [Name of Dam].

SECTION B: Definitions:

Unless otherwise indicated, words and terms have the meanings below:

1. “Va. Code” means the Code of Virginia (1950), as amended.

1. “Board” means the Soil and Water Conservation Board, a Virginia citizens’ board as described in Va. Code §§ 10.1-104.1, -503, -603.2:1.

1. “Department” or “DCR” means Virginia’s Department of Conservation and Recreation as described in Va. Code §§ 10.1-101, -104.1.

1. “Director” means the Director of DCR.

1. “Order” means this document, also known as a Special Order.

1. “Regulations” mean the Virginia Impounding Structure Regulations codified at § 4 VAC 50-20-10, et seq.

[This section includes other definitions as appropriate.]

SECTION C: Findings of Fact and Law

1. [This section includes facts and citations to law.]

(DCR-VSWCB-041) (09/16) 30

• Page 31 ---

SECTION D: Agreement and Order

According to Va. Code §10.1-609, the Director orders [Dam Owner] to perform actions in Appendix 1 of this Order.

SECTION E: Administrative Provisions

1. The Board or Director may modify, rewrite, or amend the Order on its own motion after providing [Dam Owner] notice and opportunity to be heard. Pursuant to Va. Code § 10.1-613.3, the [Dam Owner] may not bring an action against the Commonwealth, the Board, the Department, or agents or employees of the Commonwealth for the recovery of damages caused by the partial or total failure of the [Dam] or reservoir, or by the operation of the [Dam] or reservoir, or by an act or omission in connection with issuance of enforcement orders related to the operation or maintenance of the [Dam] or reservoir.

1. Pursuant to Va. Code § 10.1-613.4, nothing in this Order shall relieve the [Dam Owner] from any legal duties, obligations, and liabilities resulting from ownership and operation of the [Dam]. The owner shall be liable for

Damage to others’ property or injury, including loss of life, from the operation or failure of the [Dam].

Compliance with the Virginia Dam Safety Act, Va. Code § 10.1-604, et seq. does not guarantee dam safety or relieve the Dam Owner in case of failure.

1. This Order addresses and resolves those violations specifically addressed herein. This Order shall not preclude the Board or the Director from taking any action authorized by law, including but not limited to: (1) taking any action authorized by law regarding any additional, subsequent, or subsequently discovered violations; (2) seeking subsequent remediation of the [Dam’s] unsafe condition as may be authorized by law; or (3) taking subsequent action to enforce the Order. This Order shall not preclude appropriate enforcement actions by other federal, state, or local regulatory authorities for matters not addressed herein.

Pursuant to Va. Code § 10.1-609.A, the Dam Owner may petition the Board for a hearing within 30 days of mail service of the Order.

1. Failure by [Dam Owner] to comply with this Order constitutes a violation. This does not waive enforcement actions or issuance of additional orders by the Board or Director.

(DCR-VSWCB-041) (09/16) 31

• Page 32 ---

Nothing herein affects enforcement actions by other federal, state, or local authorities.

1. If any provision is unenforceable, the rest remains in full force and effect.

1. [Dam Owner] shall be responsible for its failure to comply with any of the terms and conditions of this Order unless compliance is made impossible by earthquake, flood, other acts of God, war, strike, or such other occurrence or circumstances beyond the [Dam Owner’s] control. [Dam Owner] shall show that such circumstances were beyond its control and not due to a lack of good faith or diligence on its part. [Dam Owner] shall notify the Director in writing when circumstances are anticipated to occur,

are occurring or have occurred that may delay or cause noncompliance with the Order.

Notice shall specify:

a. the reasons for the delay or noncompliance;

b. projected duration of such delay or noncompliance;

c. measures taken and to be taken to prevent or minimize delay or noncompliance;

d. timetable for implementing measures and achieving full compliance.

Failure to so notify the Director within a reasonable time of learning of

any condition above that the Dam Owner asserts will prevent compliance shall waive any claim of inability to comply with this Order.

1. This Order binds the parties, successors, designees, and assigns jointly and severally.

1. This Order becomes effective upon Board execution.

1. This Order remains until the Director or Board terminates with 30 days' notice. Termination does not relieve [Dam Owner] from other legal obligations.

(DCR-VSWCB-041) (09/16) 32

• Page 33 ---

Ordered this [date] day of [month], 20[year].

________________________

Director, Department of Conservation and Recreation

(DCR-VSWCB-041) (09/16) 33

• Page 34 ---

APPENDIX 1

SCHEDULE OF COMPLIANCE

Includes corrective measures and deadlines for completion:

The Dam Owner shall:

1. Upon receipt of this Special Order by certified mail, immediately begin to

Drain the Lake to a maximum of eight feet and maintain until authorized by the DCR to refill. Drain at about six inches per day under the Dam Owner’s engineer supervision. Noncompliance will result in the Director draining the Lake at the Dam Owner’s expense.

1. By September 25, 2016, submit to DCR a plan and schedule to correct deficiencies, remove unsafe conditions, and ensure Dam compliance with Virginia Dam Safety Act and Regulations.

1. By September 25, 2016, install traffic barriers and signage.

indicating the driveway is unsafe.

1. By September 25, 2016, lower the Lake water level to prevent discharge via the deteriorating drain pipe.

1. By September 25, 2016, provide documentation to DCR showing the Lake water level has been lowered.

1. The Dam Owner is responsible at all times for preventing nuisances at the Dam and Lake.

1. It is understood between the parties that acts of God such as inclement weather and other circumstances beyond the Dam owner’s control may require that completion dates be extended. The Dam owner shall notify DCR within as reasonable time if the need for an extension arises. In addition, DCR will extend completion dates, as appropriate, during DCR’s

permit application review and issuance process.]

(DCR-VSWCB-041) (09/16) 34

• Page 35 ---

Appendix D

Guidance for Assessing Civil Charges

(DCR-VSWCB-041) (09/16) 35

• Page 36 ---

D. GUIDANCE FOR ASSESSING CIVIL PENALTIES

The Virginia Dam Safety Act authorizes the Virginia Soil and Water Conservation Board to assess dam owners civil penalties up to $500 per day, max $25,000.

Civil penalties depend on case facts; their purpose is to deter future noncompliance. Methods should be fair, reasonable, and understandable.

Methods must be applied consistently to ensure equitable treatment of dam owners statewide.

The Board considers (i) past violations; (ii) owner efforts to correct deficiencies; (iii) costs of compliance; (iv) dam hazard classification; and (v) other relevant factors when setting penalties.

The Board must assess civil penalties via written notice sent by certified mail or personal service.

The notice details reasons, violation days, and total due. Owners have 30 days after receipt to respond.

Owners may petition the Board in writing for a hearing; filing timely stays the penalty.

The hearing, conducted as an informal fact-finding under VA Administrative Process Act, §2.2-4019, results in the Board affirming, modifying, or canceling the penalty within 10 days. Owners can seek judicial review of the final decision.

49 Va. Code § 10.1-613.2

50 Va. Code § 10.1-613.2 51 Va. Code § 10.1-613.2.

52 Va. Code § 2.2-400 et seq.

(DCR-VSWCB-041) (09/16) 36

• Page 37 ---

Dam owners may appeal Board decisions in court; notice to DCR must be given within 30 days of final decision’s service date, either receipt or mailing.

If civil penalty remains unpaid 45 days after final Board decision or court order, the Board shall request the Attorney General to initiate civil action in the violator's residence or principal place of business to recover the assessment.

Civil penalties assessed by the Board or the court are paid into the Flood

Prevention and Protection Assistance Fund shall be used for Dam Safety Program administration, including dam repair and maintenance.

53 Va. Code § 2.2-4026.A.

54 Va. Code § 2.2-4026.A.

55 Va. Code §10.1-613.2. 56 Va. Code §10.1-613.2 and §10.1-603.17.

(DCR-VSWCB-041) (09/16) 37

• Page 38 ---

Appendix E

Guidance Applicable to Informal Fact-Finding Proceedings

(DCR-VSWCB-041) (09/16) 38

• Page 39 ---

E. GUIDANCE APPLICABLE TO INFORMAL FACT-FINDING

PROCEEDINGS

When acting in enforcement, the Board follows the Virginia Administrative Process Act.57 It conducts informal fact-finding to hear all facts before making a case decision, relying on public data and notifying parties beforehand.59

The Board may hold the proceeding on its own initiative or at the request of a

A dam owner may petition the Board for a hearing if: (i) the Board issues a Special Order to correct deficiencies or unsafe conditions; (ii) issues a Special Order to comply with approved plans; (iii) issues a temporary stop work order for unapproved or non-compliant work; or (iv) assesses a civil penalty by written notice.61

The Board may hold informal-fact finding hearings under Va. Code § 2.2-4019 and issue a final decision. Owners aggrieved can seek judicial review.62

57 Va. Code § 2.2-4000, et seq. DCR is subject to the same procedures.

58 The Virginia Administrative Process Act, Va. Code § 2.2-4001, defines “case decision” as “any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.” As a practical matter, DCR is most likely to use the informal fact-finding proceeding to resolve outstanding issues, but the Board may also hold such proceedings in order to render case decisions, as it deems necessary. 59 Va. Code § 2.2-4019.B.

60 The regulated party and the agency may agree to waive the informal fact-finding proceeding and go directly to a formal hearing.

61 Va. Code §10–609.A. ; -610.1.B; -612.1; and -613.2.

62 Va. Code §10–609.A. ; -610.1.B; -612.1; and -613.2.

(DCR-VSWCB-041) (09/16) 39

• Page 40 ---

The regulated party has rights under the Virginia Administrative Process Act: (i) reasonable notice; (ii) to appear in person or by counsel; (iii) to notice of contrary facts; (iv) prompt decision; (v) written explanation of adverse decisions.63

The Board may appoint a staff member or authorized person to preside over the informal proceeding, but no one involved in the case may do so. The Presiding Officer resolves issues, conducts the proceeding, and recommends a decision to the

Board.65 The Presiding Officer should know applicable laws. Under Va. Code § 2.2-4022, the Presiding Officer can issue subpoenas for testimony and evidence.66

It is the Board’s responsibility to decide the case based on the record, submissions, and recommendations generated from the fact-finding proceeding.67 The case decision that results from an informal fact-finding proceeding is a determination whether or not the regulated party is in compliance with a law, regulation, or permit requirement within the Board’s jurisdiction to enforce. As such, the decision includes no monetary sanction nor directs any action on the part of the regulated party.

The Virginia Administrative Process Act requires that the decision-maker render the case decision within 90 days of the proceeding, although the parties may agree to a later date.68 Agreements to extend the deadline for the decision 90 days should be in

63 Va. Code § 2.2 –4019.A.

64 Va. Code §2.2-4001. The regulated party and DCR may agree at the outset that DCR employ a hearing officer to preside over the informal fact-finding proceeding. Such agreement may be revoked only by mutual consent. Pursuant to Va. Code § 2.2-4024, the Executive Secretary of the Supreme Court prepares and maintains a list of attorneys qualified to preside over informal and formal administrative proceedings. Upon the Director’s request, the Executive Secretary selects a hearing officer from the list to preside over the informal fact-finding proceeding. 65 If a hearing officer acts as Presiding Officer, the appointment letter for the hearing officer should state whether, in addition to conducting the proceeding, he or she is empowered to make a recommendation to the Director. 66 The Director must sign subpoenas.

67 The Director may delegate the decision-making responsibility to another (e.g., the Presiding Officer), but such delegation should be in writing.

68 If a hearing officer serves as Presiding Officer and is empowered to make a recommendation, he or she must provide the recommendation with 90 days of the proceeding. The Director has an additional 30

(DCR-VSWCB-041) (09/16) 40

• Page 41 ---

writing. The regulated party may appeal adverse decisions to the appropriate court.69

I. Preparing for the Proceeding

J. Scheduling, Notice, Location

1. DCR staff contacts the regulated party to agree on the proceeding's date, time, and place.70

1. DCR staff notifies the regulated party by Notice Letter of intent to conduct the proceeding, including: (i) date, time, place; (ii) rights under VA APA; (iii) purpose, facts, law; (iv) legal authority citation; (v) public description.

data, document or information upon which DCR intends to rely at the proceeding.72

1. DCR staff delivers the Notice Letter to the Regulated Party at least 30 days before the proceeding via certified mail, process service, or hand.

1. DCR staff submits proposed findings of fact and conclusions of law to the Presiding Officer.

Days from recommendation receipt to decision; otherwise, the Director has 90 days to decide.

69 The Virginia Supreme Court rules govern the appeal. See Va. Code § 2.2 – 4026 and Virginia Supreme Court Rule 2A:2. 70 Absent an agreement with the regulated party, the proceeding will be conducted in the county or city where the regulated party either (i) resides; (ii) regularly or systematically conducts affairs or business activity; (iii) has any property affected by the administrative action; or (iv) if the preceding do not apply, in the county or city where the violations are alleged to have occurred. Va. Code §§ 2.2-4003 and 8.01-261. 71 Virginia Code § 2.2-4019.

72 Virginia Code § 2.2-4019.B.

(DCR-VSWCB-041) (09/16) 41

• Page 42 ---

1. DCR staff arranges a room and equipment for the proceeding.

1. DCR staff arranges recording of the proceeding via audiotape or court reporter.

B. Presiding Officer -Appointment and Pre-proceeding Responsibilities

1. DCR staff consults with the Director’s Office to appoint a Presiding Officer.

1. The Presiding Officer coordinates date changes and requests pre-proceeding submissions; discovery is not allowed.

II. The Proceeding

A. Participants, Submissions

1. Participants include the Presiding Officer, DCR staff presenting, the regulated party, and his/her

counsel, and any witnesses.

1. The Presiding Officer directs the proceeding and ensures the record supports the case decision.

1. Participants may submit proposed findings of fact and conclusions of law at the start.

B. Order of Proceeding

1. The Presiding Officer opens the proceeding, explaining each party will present their case, make opening statements, call witnesses, but cross-examination is not permitted.

(DCR-VSWCB-041) (09/16) 42

• Page 43 ---

1. The Presiding Officer directs each party’s presentation timing and maintains order.

1. DCR and the regulated party give brief case statements and call witnesses; DCR then makes a brief closing argument.

followed by the regulated party with closing argument.

1. The Presiding Officer questions witnesses to ensure a complete record and requests additional findings if needed.

1. After closing arguments, the Presiding Officer explains the decision process and requests post-proceeding submissions.

1. The Presiding Officer adjourns the proceeding.

III. Post-Proceeding Matters

A. Recommendation Package

1. The Presiding Officer must deliver the recommendation package to the Board and parties within 45 days; if a hearing officer presides, within 90 days.

1. The case decision recommendation should include a summary of issues, findings, and law; the Presiding Officer may adopt either party’s findings and conclusions.

Whole or in part, but not obliged. The package must include (i) all participants, (ii) names and addresses for service, and (iii) the complete record.

B. Record

(DCR-VSWCB-041) (09/16) 43

• Page 44 ---

1. The Presiding Officer assembles the record.

1. The record typically includes the recommended decision, audiotape or transcript, and submissions collected by the Presiding Officer.

IV. The Case Decision

A. Deadlines for Final Decision

1. The Board has 90 days from the proceeding to issue a final decision unless parties agree to a later date.

1. If a hearing officer presides, the Board has 30 days from receiving the recommendation, which must be submitted within 90 days of the proceeding unless parties agree otherwise.

B. Contents of Final Decision

1. The Board may allow comments or exceptions to the recommendation, not extending the final decision deadline unless parties agree.

1. The Board issues the decision as findings of fact and law, adopting the Presiding Officer’s or parties’ submissions wholly or partly.

C. Notice to the Regulated Party

1. The Board must notify the regulated party in writing of the case decision.

The Notice should be delivered by certified mail, return receipt requested, within five days of the decision and should include a copy of the final case

(DCR-VSWCB-041) (09/16) 44

• Page 45 ---

decision (i.e., a brief summary of issues and the findings of fact and conclusions of law).

1. The Notice of Decision Letter must inform the regulated party of his or her right to appeal. The following language may be included in the Notice of Decision Letter:

To appeal, notify the Virginia Department of Conservation and Recreation at 600 E. Main St., Richmond, VA 23219, within 30 days of service, per Rule 2A:2.

That period of time increases by three days if you receive the

decision by mail.

Refer to Part Two A of Virginia Supreme Court Rules for Notice of Appeal content and appeal requirements.

Rule 2A:3 requires including a transcript of testimony with the notice.

(DCR-VSWCB-041) (09/16) 45

• Page 46 ---

Appendix F

Guidance Applicable to Formal hearings

(DCR-VSWCB-041) (09/16) 46

• Page 47 ---

F. GUIDANCE APPLICABLE TO FORMAL HEARINGS

The Virginia Dam Safety Act allows the Soil and Water Conservation Board to hold formal hearings with evidence if informal procedures under §2.2-4019 have not resolved the case.

Parties in formal hearings are entitled to notice of time, place, law, and issues; counsel; submit and rebut evidence; cross-examine witnesses; and receive prompt decisions.

The full or quorum of the Board may preside; otherwise, a hearing officer from the Court's attorney list presides, unless the Board or Director requests otherwise.

The Presiding Officer, whether Board or hearing officer, is responsible for formal hearing duties.

• to establish the hearing's date, time, and place;
• to notify all parties of the hearing;
• to manage pre-hearing information exchange so all parties have

Access to evidence and witnesses that may be called;

• to explain the hearing process at pre-hearing or before the hearing;
• to manage the transcript and record;
• for a hearing officer, to make timely recommendations to the decision-maker;
• for the Board or DCR, to make timely decisions.

At formal hearings, an Assistant Attorney General presents DCR's case unless authorized by the Attorney General. The

73 Va. Code § 2.2.4020.A.

74 Va. Code § 2.2-4024.F. If a Board member designated by the Chair presides over the formal hearing that Board member may not participate in making the final decision resulting from the hearing.

75 Va. Code § 2.2-4024.A.

(DCR-VSWCB-041) (09/16) 47

• Page 48 ---

The regulated party may be represented by counsel. A formal hearing generally includes Presiding Officer’s remarks, preliminary motions, opening statements, witness testimony, evidence, cross-examination, closing arguments, proposed findings, and adjournment.

The Administrative Process Act requires a verbatim record filed with the Board. The Presiding Officer manages it, and DCR or the Board may employ a court reporter for accuracy.

The decision-maker (Board or Director) must decide within 90 days of the proceeding, unless parties agree to a later date. If a hearing officer serves as Presiding

The hearing officer must provide a recommendation within 90 days. The Board or Director has 30 days from receipt to decide; otherwise, 90 days. The regulated party may appeal adverse decisions.

Additional guidance in the form of specific procedures for conducting formal hearings is outlined below. The procedures are based on the “Hearing Officer Deskbook, A reference for Virginia Hearing Officers,” published by the Office of the Executive Secretary of the Virginia Supreme Court of Virginia (revised December 2013). The procedures are intended for use by the Virginia Soil and Water Conservation Board or a hearing officer selected from a list of attorneys maintained by the Executive Secretary of the Virginia Supreme Court Supreme who is conducting a hearing for the Board.

76 Va. Code § 2.2-4020 and § 10. 1-603.12:7.

77 Va. Code § 2.2-4021.

78 The Virginia Supreme Court rules govern the appeal. See Va. Code § 2.2 - 4026.

(DCR-VSWCB-041) (09/16) 48

• Page 49 ---

Specific Procedures Applicable to Formal hearing

I. PRE-HEARING ISSUES

J. Scheduling, Notice, and Location

1. The Presiding Officer is responsible for scheduling hearings.

should be scheduled at a time convenient to all parties, when possible.79

1. The Presiding Officer determines the hearing location, with all parties' agreement; if not, in the county or city where the party resides, does business, owns property, or violations occurred.

1. The Presiding Officer must provide formal notice (Notice Letter) to parties before the hearing.

a. The Notice Letter must be delivered by certified mail, return receipt requested, at least 30 days prior to the hearing.

b. The Notice must state the hearing date, time, place, applicable law, hearing nature (e.g., permit revocation), alleged violations, and citations.

law, regulations, and the remedy sought (e.g., Special Order).

c. The Notice should state parties' rights, including (i) counsel; (ii) submit evidence and rebuttal; (iii) cross-examine witnesses; (iv) submit written findings and conclusions;

and (v) a prompt decision on the case.

79 The Presiding Officer may be a one of the following, depending on the circumstances: (i) a hearing officer employed by DCR or the Board; (ii) the full Board (iii) a quorum of the Board; or at least one member of the Board designated by the Board Chair to conduct hearings.

(DCR-VSWCB-041) (09/16) 49

• Page 50 ---

1. If parties agree, the hearing can occur earlier; the Presiding Officer may change time, place, or date to prevent delay, expense, public detriment, or prejudice.

B. Exchange of Information

1. The Virginia Administrative Process Act prohibits discovery; but, the Presiding Officer may require parties to exchange case-relevant information before the hearing.

Parties should exchange witness lists and evidence documents.

1. The Presiding Officer may set deadlines for information exchange, limit witness testimony, and restrict evidence to pre-hearing submissions.

C. Pre-hearing Statements and Conferences

1. The Presiding Officer may schedule a pre-hearing conference on own or party request, with reasonable notice, in person or by phone, considering circumstances.

1. Pre-hearing conference aims to clarify issues, explain procedures, discuss stipulations, documents, witnesses, and settlement options.

1. The Presiding Officer may require the parties to submit proposed Findings of

Parties submit facts and legal conclusions before the hearing, organized chronologically and supported by evidence and citations.

D. Subpoenas and Depositions

80 The Presiding Officer may not participate in settlement discussions but may issue a stay upon the request of the parties, if they wish to pursue a settlement.

(DCR-VSWCB-041) (09/16) 50

• Page 51 ---

1. The Presiding Officer may issue subpoenas and duces tecum under the Board or DCR's signature, upon request; subpoenas command appearance, duces tecum requires production of documents.

1. Depositions may be taken and read as in actions at law.82

E. Ex Parte Communications

1. The Presiding Officer should avoid ex parte communications to ensure fairness.

1. The Presiding Officer should record any ex parte communication and notify all parties for comment.

II. The Hearing

A. Failure to Attend

1. A party missing a pre-hearing conference must be notified of rulings and allowed to object.

had reasonable notice of the conference.

1. If a party fails to attend the hearing without good cause after notice, the Presiding Officer may proceed and issue recommendations.

B. Written Statements

81 Va. Code § 10.1-603.12:7.D and § 2.2-4022.

82 Va. Code § 10.1-603.12:7.B and § 2.2-4022.

(DCR-VSWCB-041) (09/16) 51

• Page 52 ---

1. The Presiding Officer may admit written witness statements into the record and should allow parties to exchange all written statements during pre-hearing information exchange.

1. Parties may subpoena witnesses with written statements for cross-examination; advance notice allows formal objection to evidence during pre-hearing exchange.

C. Evidence

1. The Presiding Officer may receive probative evidence, rule on offers of proof, and admit relevant, reliable, non-improper evidence; hearsay weight is at discretion.

1. The Presiding Officer may exclude irrelevant, immaterial,

Insubstantial, privileged, or repetitive proofs, rebuttal, or cross-examination. Evidence must support the Presiding Officer’s recommendation and Board or DCR decision.

D. Experts

1. The Presiding Officer may admit expert testimony, qualify experts, determine opinion weight, and resolve conflicts between experts’ testimonies.

1. Parties should exchange names, addresses, and qualifications of experts during pre-hearing exchange.

E. Burden and Standard of Proof

(DCR-VSWCB-041) (09/16) 52

• Page 53 ---

1. The burden of proof is on the “proponent or applicant.” When enforcing, DCR must provide sufficient evidence to justify its action, whether issuing an order or revoking a permit.

1. The standard of proof is preponderance of the evidence; DCR’s case must be stronger than the regulated party’s to justify the action.

F. The General Order of the Proceeding

1. The Presiding Officer opens the proceeding with introductory remarks and disposes of preliminary motions.

1. At Presiding Officer’s direction, parties make opening statements; DCR first, followed by the regulated party.

1. At Presiding Officer’s direction, each party makes its case in turn.

By calling witnesses; conducting direct, redirect, cross, and recross examination; and presenting evidence, proofs, and rebuttal. The presiding Officer may administer oaths. DCR calls its witnesses first, then the regulated party.

1. At Presiding Officer’s direction, parties make closing arguments; DCR first, then the regulated party.

1. At Presiding Officer’s direction, parties may submit proposed findings of fact and conclusions of law if not already submitted.

G. The Hearing Record and Transcript

1. A typical record includes: (i) hearing officer appointment letter; (ii) formal notice; (iii) pre-hearing orders; (iv) motions, briefs, pleadings, petitions, and

83 Va. Code § 2.2-2040.

(DCR-VSWCB-041) (09/16) 53

• Page 54 ---

Intermediate rulings; all evidence (admitted or rejected); matters officially noticed; proffers, objections, rulings; proposed findings, orders, exceptions; hearing transcript; orders; ex parte matters; submissions.

1. The Presiding Officer is responsible for assembling and preserving the record until submitting it with the recommendation to the decision-maker.

H. Open Hearings

1. Formal hearings are generally open; closing hearings require consent of the Board or

DCR.

1. The Presiding Officer may control media and spectator access to prevent interference with hearing dignity and conduct.

III. Post-Hearing Issues

A. Additional Submissions

1. The Presiding Officer may require additional submissions, including findings, conclusions, and briefs on issues raised during the hearing, on own initiative or at party request.

1. The Presiding Officer may allow parties to file transcript corrections, amended findings, legal memoranda, and replies to opposing findings and conclusions.

B. Recommendation Package

(DCR-VSWCB-041) (09/16) 54

• Page 55 ---

1. If empowered to recommend, the Presiding Officer must deliver the recommendation to the decision-maker and parties within 90 days, unless parties agree in writing to a later date.

1. The recommendation includes a summary of issues, findings, and law; may adopt either party’s findings; and should include hearing attendees, recipients, draft order, and complete record.

1. DCR will direct the Presiding Officer where to deliver the recommendation and complete record.

IV. The Case Decision

A. Deadlines for Final Decision

1. The decision-maker has 30 days from recommendation delivery to issue a final decision unless parties agree to a later date.

1. If the Board presides, it must issue a final decision within 90 days unless parties agree in writing to a later date.

date.

B. Contents of Final Decision

1. The decision-maker may allow parties to comment or exception on the recommendation; this does not extend the final decision deadline unless all parties agree.

(DCR-VSWCB-041) (09/16) 55

• Page 56 ---

1. The case decision typically includes findings and law; the decision-maker may adopt the Presiding Officer’s recommendation or party submissions wholly or partly.

C. Notice to the Regulated Party

1. The decision-maker must notify the regulated party in writing of the case decision (Notice of Decision Letter). The Notice of Decision Letter should be delivered by certified mail, return receipt requested, within five days of the decision being rendered and should include a copy of the final case decision (i.e., the findings of fact and conclusions of law).

1. The Notice of Decision Letter must inform the regulated party of his or her right to appeal. The following language may be included in the Notice of Decision Letter:

To appeal to a Virginia court, notify the Virginia Department of Conservation and Recreation, Office of the Director, 600 E Main St, 24th Floor, Richmond VA 23219. You have 30 days from service (receipt or mailing), extended by 3 days if mailed.

Please refer to Part Two A of the Rules of the Supreme Court of Virginia for a description of the required contents of the Notice of Appeal and additional requirements governing appeals from the decisions of administrative agencies.

There is a further requirement in 2A:3 that the party includes a transcript of the testimony along with notice.

(DCR-VSWCB-041) (09/16) 56

• Page 57 ---

Appendix G

Guidance Applicable to Litigation Referrals

(DCR-VSWCB-041) (09/16) 57

• Page 58 ---

G. GUIDANCE APPLICABLE TO LITIGATION REFERRALS

The Virginia Attorney General represents the Board, Director, and DCR in civil sanctions. Requests for representation must come from the Board or Director.

Before requesting representation, DCR staff will meet informally with Agency Counsel to discuss the case and provide necessary files, documents, or evidence for referral suitability.

If all agree, DCR submits a referral package with a formal request, supporting memorandum, case file, dam owners' names, violations, and relief sought.

84 Va. Code § 2.2-507.

(DCR-VSWCB-041) (09/16) 58

• Page 59 ---

Appendix H

Guidance Applicable to Emergency Procedures

(DCR-VSWCB-041) (09/16) 59

• Page 60 ---

H. GUIDANCE APPLICABLE TO EMERGENCY PROCEDURES

If owner or engineer determines imminent failure risk, owner may initiate temporary repairs before Board approval and must notify DCR within 24 hours.

When the Director finds an unsafe dam posing imminent danger, he shall notify Emergency Management, confer with the owner, who must activate the Emergency Plan, and take immediate corrective action.

Owner shall promptly correct imminent danger; if not, the Governor may act immediately without hearing to remove it. 86

The Attorney General may bring an action against the owner of the impounding structure for the Commonwealth's expenses in removing the imminent danger. There shall be a lien upon the owner's real estate for the Commonwealth's expenses in removing the imminent danger. The owner may avoid the Commonwealth's costs, and recover any damages, upon proving that the dam was known to be safe at the time such action was taken, and that the owner had provided or offered to immediately provide such proof to the Director before the action complained of was taken. Nothing herein shall in any way limit any authority existing under the Emergency Services and Disaster Law. 87

Notwithstanding subsection A, if the Director finds changed circumstances justify reclassification after the report,

If deficiencies pose imminent danger, the Director may enforce under § 10.1-613, and owner can contest the basis of the order.

The Director, upon a determination that there is an unsafe condition at an impounding structure, is authorized to cause the lowering or complete draining of such impoundment until the unsafe condition has been corrected at the owner's expense and prior to any authorization to refill.

85 4 VAC 50-20-220. The emergency notification does not relieve the owner of the need to obtain an alteration permit as soon as practicable nor shall the owner take corrective actions beyond those necessary to address the emergency.

86 Va. Code § 10.1-608.

87 Va. Code Va. § 10.1-608 and Code § 44-146.13 et seq.

(DCR-VSWCB-041) (09/16) 60

• Page 1 ---

C V

OMMONWEALTH OF IRGINIA

2025 Grant Manual for the

Virginia Dam Safety, Flood Prevention

and Protection Assistance Fund

2025 Grant Funding

Applications due: 4:00 p.m. EST, February 28, 2025

Developed by the Department of Conservation and Recreation in cooperation with the Virginia Resources Authority

TBD

(DCR-VSWCB-018) ()

• Page 2 ---

(DCR-VSWCB-018) (12/23)

• Page 3 ---

Table of Contents Part I: Introduction and Overview .................................................................................................... 3

Purpose of this Manual ................................................................................................................. 3 Dam Safety, Flood Prevention and Protection Assistance Fund (Fund) Overview and Authority ...................................................................................................................................................... 3 Funding Sources ........................................................................................................................... 4

Definitions .................................................................................................................................... 5 Virginia Dam Safety Program ...................................................................................................... 6

Part II: General DCR Grant Eligibility Criteria and Application Procedures .................................. 7 DCR Conditions and Limitations for Making Grants .................................................................. 7 Application and Selection Process ............................................................................................... 9

1. General Submittal Information and Deadline ................................................................... 9
2. Project Application Contents .......................................................................................... 10
3. Application Review and Approval ................................................................................. 11

1. Project Commencement and Schedule for Completion .................................................. 11
2. Reporting and Close-Out Guidelines for Grant Recipients ............................................ 12
3. Grant Award and Administration ................................................................................... 12

1. Virginia Resources Authority Disbursement of Grant Funds......................................... 13 Part III: Eligible Dam Safety Projects ............................................................................................ 14 Dam Safety Project Descriptions and Eligible Activities ........................................................... 14

Project Type 1: Initial Engineering Studies for Unknown Hazard Dams ............................. 14 Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation ................ 14

Project Type 3: Dam Repair, Safety Modifications or Removal ........................................... 15 Part IV: Dam Safety Scope of Work Narrative .............................................................................. 17 Part V: Dam Safety Budget and Budget Narrative ..................................................................... 1819

Part VI: Additional Funding Resources: .................................................................................... 2020 Appendix A: Application Form for Dam Safety Projects .............................................................. 21 Appendix B: Scoring Criteria for Dam Safety Projects ................................................................. 24

Appendix C: Documentation Checklist for Dam Safety Applications ........................................... 28 Appendix D: Extension Request Form ........................................................................................... 29

(DCR-VSWCB-018) () 1

• Page 4 ---

(DCR-VSWCB-018) () 2

• Page 5 ---

Part I: Introduction and Overview

Purpose of this Manual

The purpose of this manual is to provide guidance regarding the policies, criteria, conditions, and procedures for determining project eligibility and awarding grants from the Virginia Dam Safety, Flood Prevention and Protection Assistance Fund to local governments and private entities for specified dam safety and floodplain management issues pursuant to §10.1-603.16 et seq. of the

Code of Virginia.

Dam Safety, Flood Prevention and Protection Assistance Fund (Fund) Overview and Authority

The Fund was established to:

1. Provide matching grants to local governments (including Soil and Water Conservation Districts) and to private entities owning existing regulated dams to improve dam safety.

This includes matching grants to local governments for orphan dams that are within their jurisdiction. State-owned and federally-owned dams, or dams not regulated pursuant to the Dam Safety Act (§10.1-604 et seq. of the Code of Virginia), are ineligible.

1. Provide matching grants to any local government for the purpose of assisting the local government with improvements to flood prevention or protection. Applicants interested in pursuing this category of the grant should now pursue funding from the Community Flood Preparedness Fund (CFPF). Additional information can be found here.

The Fund consists of monies appropriated by the General Assembly, assessments made on flood insurance premium income pursuant to §38.2-401.1 of the Code of Virginia, funds returned in the form of interest and loan principal by recipients of funding, income from the investment of monies contained in the fund, and other public and private funds eligible for deposit.

The Fund is permanent and non-reverting and is administered and managed by the Virginia Resources Authority (VRA) in cooperation with the Department of Conservation and Recreation (DCR). Section 10.1-603.19 F of the Code of Virginia specifies that “[t]he total amount of expenditures for grants in any fiscal year shall not exceed 50 percent of the total non-interest or

income deposits made to the Fund during the previous fiscal year, together with the total amount collected in interest or income from the investment of monies in the Fund from the previous fiscal year as determined at the beginning of the fiscal year.” Subsection G states that “[a]ny grants made from the Fund shall require [a minimum of] a 50 percent project match by the applicant. Any loans made from the Fund shall require a minimum of a 10 percent project match by the applicant.”

(DCR-VSWCB-018) () 3

• Page 6 ---

The Director of the Department of Conservation and Recreation (DCR) is authorized to make this grant available to communities, as outlined in §10.1-603.19:

§10.1-603.19 A. The Director may make grants or loans to any local government for the purpose of assisting the local government in the development and implementation of flood prevention or protection projects, or for flood prevention or protection studies.

§10.1-603.19 C. The Director may, in order to protect public safety and welfare, make … (ii) grants to local governments and private entities for the determination of the hazard classification for impounding structures (dams), dam break analysis, the mapping and digitization of dam break inundation zones, incremental damage analysis, and other engineering requirements such as emergency action plan development.

The Director of DCR will determine the type and amounts of funding available prior to each funding period and will specify the categories that will be considered for grant assistance. The Director is authorized to make expenditures in accordance with §10.1-603.16 et seq. of the Code of Virginia and the terms of this grant manual following approval of funding recommendations by the Virginia Soil and Water Conservation Board (Board). While flood prevention and protection

is eligible, no funding is allocated in the 2025 Grant Manual for this purpose. Interested applicants may seek funding under the Community Flood Preparedness Fund (CFPF) for flood prevention and protection activities. Additional information can be found here. The Resilient Virginia Revolving Loan Fund (RVRLF) also has funding available for flood prevention and protection activities.

Funding Sources

A total of $5,000,000 is available for grants during this grant cycle. Funding available during this grant cycle consists of the following:

Dam Safety, Flood Prevention and Protection Assistance Fund (Fund): $5,000,000. Per Section 10.1-603.19 F of the Code of Virginia, “[t]he total amount of expenditures for grants in any fiscal year shall not exceed 50 percent of the total non-interest or income deposits made to the Fund during the previous fiscal year, together with the total amount collected in interest or income from the investment of monies in the Fund from the previous fiscal year as determined at the beginning of the fiscal year.” Up to $1,000,000 will be available to continue to assist the owners of dams of regulatory size without a current hazard classification. An additional $4,000,000 will be available for locally or privately owned dams across the Commonwealth with known hazard classifications.

o Up to $1,000,000 is available for dams of regulatory size with an undetermined hazard classification, including:

• Private or local government-owned dams of unknown hazard classification
• Project Type 1: Initial engineering studies for unknown hazard dams

o Up to $4,000,000 is available for dams of regulatory size, including:

• Private or local government-owned dams

(DCR-VSWCB-018) () 4

• Page 7 ---

• Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation
• Project Type 3: Repairs, Safety Modifications and Removal

• High Hazard Dams will receive priority for funding.

Note: After the grant application deadline expires and pending Board approval, funding may be shifted between these two funding categories to adapt to the funding demands of the grant applications received.

Definitions

Some of the terms used in this grant manual and in §10.1-603 of the Code of Virginia have specific meanings that may vary from other contexts. For the purposes of this manual and the Fund:

● “Cost” means the total of all costs incurred by the local government or private entity as

reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project. It includes, without limitation, all necessary developmental, planning and feasibility studies, surveys, plans and specifications; hydrologic and hydraulic studies and analyses; architectural, engineering, financial, legal or other special services; mapping; the cost of acquisition of flood-prone land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings or improvements; site preparation and development, including demolition or removal of existing structures; construction and reconstruction; labor; materials, machinery and equipment; the reasonable costs of financing incurred by the local government or private entity in the course of the development of the project; carrying charges incurred before placing the project in service; necessary expenses incurred in connection with placing the project in service; the funding of accounts and reserves that the Authority may require; and the cost of other items that the Authority determines to be reasonable and necessary. ● “Local government” or “Locality” means any county, city, town, municipal corporation, authority, district, commission, or political subdivision created by the General Assembly

or pursuant to the Constitution or laws of the Commonwealth, or any combination of two or more of these entities. ● “Private entities” means dam owners, whether individuals, partnerships, corporations, or other nongovernmental entities. This additionally includes, but is not limited to, homeowners’ associations, planned unit developments as defined in §15.2-2201 of the Code of Virginia, and common interest communities as defined in §54.1-2345 of the Code of Virginia when recognized as dam owners. ● “Project” for the Dam Safety program means the design, repair, and safety modifications of a dam or impounding structure, as defined in §10.1-604, and identified in dam safety reports generated pursuant to §10.1-607 or §10.1-609; or the mapping and digitization of dam break inundation zones. The term includes, without limitation, the construction, modification, or repair of dams, levees, flood walls, channel improvements, or diversions. ● “Maintenance” means routine activities conducted by the dam owner for preventive maintenance, such as removal of woody plants and trees, addressing rodent holes, etc.; replacement of parts, systems, or components; and other activities needed to preserve or

(DCR-VSWCB-018) () 5

• Page 8 ---

maintain the dam that do not require an alteration permit.

Virginia Dam Safety Program

Provisions of the Virginia Dam Safety Act (Act) (§10.1-604 et seq. of the Code of Virginia) and its attendant regulations (4 VAC 50-20-10 et seq.) promulgated by the Virginia Soil and Water Conservation Board and administered on behalf of the Board by DCR’s Division of Dam Safety, promote the proper and safe design, construction, operation, and maintenance of dams in the Commonwealth. The Act applies to dams that are twenty-five feet or higher and that create a maximum impoundment capacity of fifteen acre-feet or greater and dams that are six feet or higher and a maximum impoundment capacity of fifty acre-feet or greater. Exceptions are dams operated primarily for agricultural purposes which are less than 25 feet in height or which create a maximum impoundment capacity smaller than 100 acre-feet, dams owned or licensed by the United States government, dams licensed by the State Corporation Commission that are subject to a safety inspection program, water or silt retaining dams approved pursuant to §45.2-618 or §45.2-1301 of

the Code of Virginia (mining or quarry dams permitted by Department of Mines, Minerals, and Energy), and obstructions in a canal used to raise or lower water. The Virginia Dam Safety Program’s goal is to enhance public safety and the protection of property by ensuring that dams meet mandatory regulatory requirements and assisting dam owners and their licensed engineers in the proper construction, maintenance, and operations of their dams.

(DCR-VSWCB-018) () 6

• Page 9 ---

Part II: General DCR Grant Eligibility Criteria and

Application Procedures

DCR Conditions and Limitations for Making Grants

● Per §10.1-603.19 G of the Code of Virginia, any grants made from the Fund shall require a minimum of a 50 percent match. This match may be from a combination of funding sources, including federal dollars, so long as the Fund does not contribute more than 50 percent of total costs.

● Projects commencing after July 1, 2024, are eligible: o Owners pursuing projects prior to grant approval do so at their own risk. There is no guarantee of matching funds prior to grant approval by the Soil and Water Conservation Board. Matching funds are subject to limitations of the total funding amount, funding source purpose as designated by law, and grant application competitiveness based on the scoring criteria.

● Grant assistance will be awarded by category on a competitive scoring basis for eligible projects that meet the general conditions of this section and the eligibility criteria set out in the project category descriptions. The scoring criteria values for each project category are contained in Appendix B.

● Grant funds will be disbursed on a reimbursement basis and only after the completion of the approved project.

● For dams applying under Project Section 1: Unknown Hazard Dams, the dam must be operating under a Regular or Conditional Operation and Maintenance Certificate prior to reimbursement. As an alternative, the Regular or Conditional Operation and Maintenance Certificate Application and associated fee may be submitted at the time of reimbursement request.

● For dams seeking funding for Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation, the dam owner(s) must have submitted a Regular or Conditional Operation and Maintenance Certificate Application and associated fee no later than the

grant application deadline. A current professional engineer’s inspection must be on file with DCR at the time of the grant application submittal.

● For dams seeking funding for Project Type 3: Repairs, Safety Modifications, or Removal, a current Regular or Conditional Operation and Maintenance Certificate application, must be submitted to DCR prior to the application deadline. An alteration permit, as well as plans and specifications, must be submitted to DCR for the project no later than January 15, 2025 for the grant application to be considered. Dam removal projects may propose a design-build approach and be exempt from the requirements to have approved plans and specifications and a hazard classification on file with DCR at the time of application.

However, a construction emergency preparedness plan must be approved by DCR prior

(DCR-VSWCB-018) () 7

• Page 10 ---

to starting construction activities.

● No analysis or study will be approved if the methodology used to conduct any analysis or study fails to meet applicable Dam Safety Regulations.

● Dam owners having or pursuing an Agricultural Exemption are not eligible for grants in this program. If the dam is to be repurposed as a non-agricultural dam, it would be eligible.

● Dam owners ultimately claiming size-exempt status are not eligible for grants in this program.

● All dam safety applications and supporting documentation must be submitted through the online Dam Safety Inventory System (DSIS). DSIS forms and data are located at https://www.dcr.virginia.gov/dam-safety-and-floodplains/ds-dsis. New users to DSIS are required to register through DSIS prior to application. It is recommended that dam owners sign up for DSIS access no later than December 31, 2024, in order to familiarize themselves with the system and avoid last-minute delays resulting in an unsuccessful submission.

● All successful “private entity” applicants will be required to provide identifying tax information (SSN/EIN) at the time of acceptance of award. All grant reimbursements are taxable and reportable to the IRS. DCR does not provide advice regarding the tax implications of grants; the grantee should seek any necessary guidance from a tax professional.

● Each application submitted must be for a discrete project that commenced on or after July 1, 2024 and ends not later than 24 months of an executed agreement. These specified dates constitute the required “project completion date.” Reimbursement requests must be submitted within 90 days following the project completion date.

Projects completed prior to July 1, 2024 ARE NOT eligible for funding.

● No project or portion thereof identified in a previously awarded and reimbursed application is eligible for funding. For Dam Safety projects, this does not prohibit grant awards to a dam owner for an eligible, separate, and discrete project on the same dam.

● DCR, VRA, and the Board, at their discretion, reserve the right to provide funding at a level less than requested by the applicant or to refuse to fund an applicant’s request.

Reasons for such determinations include but are not limited to, incomplete applications, project ranking, the attainability of the proposal, creditworthiness of the applicant, total funding determined to be necessary to complete the project, failure to complete the project by the specified completion date, and total available funding.

● Should ownership of the dam change during the lifespan of the grant, the grant does not transfer. This does not include legal name changes where the new name remains clearly tied to the grant recipient.

(DCR-VSWCB-018) () 8

• Page 11 ---

● Applications will be accepted beginning November 1, 2024 and ending at 4:00 p.m. (EST) on February 28, 2025.

● In order for a grant to be authorized, an eligible project shall satisfy the following general conditions to DCR within the specified application period. o Where applicable, the applicant [if a locality or entity (for example, a corporation or homeowner’s association)] has formally adopted a resolution requesting assistance from the Fund or a statement indicating that a resolution will be proposed, and once approved, will be forwarded to DCR prior to the close of the application period.

Resolutions not received prior to the close of the application period will cause the

application to be disqualified. o The applicant has provided satisfactory assurances of funding availability to fully fund the project through completion. This must include signed, written verification as outlined in the requirements for the Dam Safety Budget Narrative. o Project maintenance and management plans are required when applying for funding for Repairs or Safety Modifications. A maintenance plan for repair and safety modification projects must be provided, demonstrating how the dam will be maintained for the expected lifetime of the impounding structure or at least 50 years. No maintenance plan is required for dam removals. o All legal dam owners must sign the grant application. If only one owner applies, the applicant owner must submit proof of signatory authority signed by all legal dam owners. In cases where known owners refuse to sign the application, a written request for authorization to apply without all signatures must be included with the application submission as a separate document. The request must provide an explanation and justification for the request. Approval of the request will be at the sole discretion of the Director of DCR. o If a grant is sought for a study, project, or activity that will be carried out in concert

with a federal agency, the applicant must have entered into or have adopted a resolution to enter into any necessary written agreement with the federal agency endorsing the study, project, or activity, including any provisions for cost-sharing. A copy of the agreement must be submitted with the application.

Application and Selection Process

1. General Submittal Information and Deadline

A complete electronic application file with all required attachments must be submitted through

DSIS.

Files should be saved as follows: ● Dam Safety projects: Dam inventory number.pdf (example: 190054. pdf). If multiple applications are for the same inventory number, then please use 190054-1.pdf.

If electronic submittal through DSIS is not possible, approval to submit outside of DSIS may be

considered under extenuating circumstances. A written justification must be submitted to dam@dcr.virginia.gov by January 30, 2025. If approval is granted, the applicant will be required

(DCR-VSWCB-018) () 9

• Page 12 ---

to submit the completed application along with all attachments and supporting documentation to dam@dcr.virginia.gov. If email submission is not possible, submit three complete copies of each application (including one originally-signed copy), together with all attachments and supporting

documentation, to the Virginia Department of Conservation and Recreation at the address below:

Virginia Department of Conservation and Recreation Attention: Dam Safety, Flood Prevention and Protection Assistance Fund Division of Dam Safety 600 East Main Street, 24th Floor Richmond, Virginia 23219

It is important that applications be printed on one-sided pages. All pages must be sized to 8.5 x 11 inches. Photographs are acceptable. All photos and images and their captions must be mounted on

1. 5 x 11-inch paper and be of a quality suitable for reproduction by photocopier. It is not necessary to submit three sets of original images, but all reproduced images must be clear and discernable.

Images and photos will not be returned.

Please ensure signature pages are completed prior to submitting electronically or mailing.

Applications without signatures will be considered incomplete and will be removed from funding

consideration. Applications will be accepted beginning on November 1, 2024. All applications must be RECEIVED by 4:00 p.m. (EST) on February 28, 2025. Applications received after this deadline will not be considered.

Applications will be scored, ranked, and funded based on scoring criteria in Appendix B for Dam Safety and the availability of funds.

General Application Inquiries: For any questions regarding the application process, please contact the Department of Conservation and Recreation, Division of Dam Safety at (804) 371-6095 or via email at dam@dcr.virginia.gov .

1. Project Application Contents

Organizational Information The Application Form (Appendix A) contains general organizational information, including the title, category, and location of the project, the amount of grant funds requested, and contact information for the applicant or the applicant’s designated contact person.

Scope of Work Narrative (as an attachment to the Application Form)

The requirements for the project’s Scope of Work Narrative are outlined in Part III of this manual. A completed scoring criteria sheet must also be included to support the Scope of Work Narrative.

Budget Narrative (as an attachment to the Application Form) The Budget Narrative establishes the proposed budget for the project. It should include evidence of the source of funds available to fully fund the project to qualify for cash-matching funds. A description of the Budget Narrative is outlined in Part III of this manual.

(DCR-VSWCB-018) () 10

• Page 13 ---

1. Application Review and Approval

Qualifying projects in each category are selected for funding on a competitive scoring basis.

DCR will use the following procedure in determining the qualification of an application.

Department of Conservation and Recreation (DCR) Review Applications will be reviewed by DCR’s Division of Dam Safety for completeness in accordance with the eligible grant categories and application requirements. Division staff will additionally review and rank each complete application to determine its merits in accordance with the criteria set out in this manual pursuant to the scoring criteria contained in the appropriate Appendix for that project type.

Virginia Soil and Water Conservation Board Review DCR will recommend qualified projects for funding to the Board. The Board will consider the recommendations and approve projects for funding in accordance with the criteria set out in this manual.

Virginia Resources Authority (VRA) Review Following the Board’s approval and pending further necessary submittals, the application will be forwarded to VRA for the execution of a grant agreement and funding. For those projects funded with American Rescue Plan Act funds, DCR will execute a grant agreement and funding following the Board’s approval.

1. Project Commencement and Schedule for Completion

Since the readiness of projects to proceed is a critical factor in maintaining the integrity of the program, projects can start on or after the beginning of the application period and not later than twenty-four (24) months following the issuance of a signed agreement between the applicant and VRA on behalf of DCR or between the applicant and DCR. If a project does not commence in a timely fashion to allow completion within the agreement period, funding will be withdrawn from the project and may be redistributed to other qualifying projects at the discretion of the

Board. The applicant may reapply during the next funding round, provided the proposed project activity remains eligible. Such funds may be redistributed to other qualifying projects at the discretion of the Board.

All projects are eligible for a 1-year period of performance extension . An extension may be requested by completing the “Extension Request Form” (Attachment D of this grant manual). The request must be received not later than 120 days prior to the expiration of the original agreement and should be emailed to dam@dcr.virginia.gov. If email is not available, please mail the completed form to:

Virginia Department of Conservation and Recreation Attention: Dam Safety, Flood Prevention and Protection Assistance Fund

Division of Dam Safety 600 East Main Street, 24th Floor

(DCR-VSWCB-018) () 11

• Page 14 ---

Richmond, Virginia 23219

1. Reporting and Close-Out Guidelines for Grant Recipients

Where applicable, DCR will conduct project inspections as necessary to ensure conformance to grant terms. Final project deliverables defined in the approved Scope of Work are due to DCR within 30 days following the project end date unless another date is approved by DCR. All materials shall be provided digitally to DCR through the Dam Safety Inventory System (DSIS) as a requirement for receipt of this grant. Although not required, printed materials may also be submitted to DCR in addition to the DSIS submittal. Printed material may not substitute for DSIS submittal. ● All documents must be provided in PDF and/or a Microsoft Word-compatible format, including any embedded maps or other figures/illustrations. ● All engineering files (including hydrologic and hydraulic studies) and assumptions necessary to replicate various analyses or other calculations must be provided in a format compatible with the software used to perform those calculations; likewise, all output files are also required.

● All tabular information not included in the engineering files above, whether contained within any report or appendix, which was used as the basis for any calculation, shall be provided in a Microsoft Excel compatible format or Microsoft Access compatible format.

• All map data shall be delivered as a geodatabase or individual shapefiles. Additionally, maps shall be provided in a PDF format if not already included embedded within the report(s). o If derived from CAD or another non-GIS workflow, data must be converted into a GIS format. o See the Virginia Soil and Water Conservation Board's Guidance Document for specific requirements and direction for mapping - Dam Break Inundation Zone Modeling and Mapping Procedures (PDF) (Revised June 28, 2018, and Sept. 27, 2018).

1. Grant Award and Administration

A. After approval by the Virginia Soil and Water Conservation Board at the meeting tentatively scheduled for May 2025, a letter will be sent from DCR to the applicants, and notice of awards will be posted on the DCR Dam Safety and Floodplain Management Grants web page at http://www.dcr.virginia.gov/dam-safety-and-floodplains/dsfpm-grants.

B. VRA or DCR will email grant agreements to recipients using the email address provided in the original application. If no email address is provided, the grant agreements will be sent via U.S. mail. Recipients shall return the signed Grant Agreement within 90 days of receipt to:

Peter D’Alema Virginia Resources Authority

(DCR-VSWCB-018) () 12

• Page 15 ---

1111 E. Main Street, Suite 1920 Richmond, VA 23219 PDAlema@virginiaresources.org

(804) 616-3446

Grant agreements not signed and returned to VRA or DCR, as appropriate, within 90 days as required, will have grant funds rescinded.

C. Within 30 days after the dam safety project is completed, the applicant shall submit digital

copies of the completed engineering work to the Regional Dam Safety Engineer for approval. Exhibit D Form of Requisition along with the Certificate of the Consulting Engineer Form, both included in the grant agreement, must be included with the dam safety project submittal to the Regional Engineer. Electronic submittals shall be made to dam@dcr.virginia.gov. Names and mailing addresses of DCR’s Regional Dam Safety Engineers are available online at http://www.dcr.virginia.gov/dam-safety-and-floodplains/dsfpmcontx.

D. Submit reimbursement requests within 90 days following the passage of the authorized project completion date, including completed and signed Exhibit E Reimbursement Request Form, signed Exhibit D Form of Requisition along with the Certificate of the Consulting Engineer Form, all located in the grant agreement, proof of payment (canceled checks, bank statements, accounting system reports, etc.) and invoices to dam@dcr.virginia.gov or:

Virginia Department of Conservation and Recreation Attention: Dam Safety, Flood Prevention and Protection Assistance Fund Division of Dam Safety 600 East Main Street, 24th Floor

Richmond, Virginia 23219

Invoices must be detailed and specific to the project awarded and provide sufficient detail to determine the work and hours genuinely completed related to the approved project.

If the project was awarded for Dam-break Inundation Zone Study (DBIZ) Analysis, Mapping, and Digitization or for EAP Development, evidence must be provided that the map has been additionally filed with the local planning department and the EAP with the local emergency management coordinator and the Virginia Department of Emergency Management prior to reimbursement approval.

1. Virginia Resources Authority Disbursement of Grant Funds

Grant funds shall be disbursed on a reimbursement basis only. All requests for disbursement

shall be delivered to DCR for approval according to the reimbursement terms of the grant manual and grant agreement. DCR shall forward the approved request to VRA for payment to the applicant for projects not funded through ARPA monies. Neither DCR nor VRA will disburse funds prior to receipt of a fully executed grant agreement signed by the grant recipient and subsequently signed by VRA’s Executive Director or signed by the grant recipient and

(DCR-VSWCB-018) () 13

• Page 16 ---

subsequently signed by DCR’s Director. Where applicable, DCR will conduct site visits and inspections to monitor project compliance. A checklist for reimbursement will be included as Exhibit E in the Grant Agreement.

Part III: Eligible Dam Safety Projects

Dam Safety Project Descriptions and Eligible Activities

The purpose of this category is to assist dam owners in bringing their regulated dams into compliance with the Dam Safety Act (§10.1-604 et seq. of the Code of Virginia) and the Virginia Impounding Structure Regulations (4VAC50-20-10 et seq.) or to remove unsafe dams. Funding is available under three categories. Previously funded activities are ineligible for additional funding.

Project Type 1: Initial Engineering Studies for Unknown Hazard Dams

Total Pool of Matching Funds Available: $1,000,000

Criteria

1. Dam is a local government or privately owned dam.
2. Must be a dam with an undetermined hazard classification.
3. Dam owners who did not receive a Letter of Engagement must notify their Dam Safety Regional Engineer of their intent to apply for a grant(s) under this project type by January 15th.

1. Only one project type may be selected per application; multiple applications may be submitted.

Eligible Activities

1. Dam Break Inundation Zone Analysis, Mapping, and Digitization
2. Emergency Plan Development (EAP Emergency Action Plan)
3. Professional Engineer Inspection Project

Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation

Total Pool of Matching Funds Available: $4,000,000 (allocation shared between Projects Type 2 & 3)

Criteria

1. Dam is regulated by the Dam Safety Act.
2. Dam is a local government or privately owned dam.
3. Only one project type may be selected per application; multiple applications may be submitted.
4. Has an approved and active Conditional Operation and Maintenance Certificate on file with DCR at the time of application. As an alternative, applicants may submit an application for an Operations and Maintenance Certificate by the grant application deadline.
5. An Alteration Permit application and Record Report must be submitted and approved by DCR during the project performance period and prior to reimbursement request for eligible

(DCR-VSWCB-018) () 14

• Page 17 ---

activity #7 (Installation of a remote monitoring system).

1. High Hazard Dams are given priority.

Eligible Activities

1. Dam Break Inundation Zone Analysis, Mapping, and Digitization with Hazard Classification
2. Emergency Plan Development (EAP Emergency Action Plan or EPP Emergency Preparedness Plan)
3. Spillway Capacity, Integrity, and/or Overtopping Analysis
4. Geotechnical Investigation with Slope Stability Analysis, including Static, Seismic, and Spillway and Dam Stability
5. Engineering and Design for one of the following: a. Dam Embankment Wave Run-up or Wave Berm Construction and Reconstruction Analysis and Plan

b. Dam-Graded Filter Drains, Toe Drains, Drainpipes, and/or /Underdrain Analysis and Plan c. Principal and/or Emergency Spillway and Repair/Replacement Plan d. Trash Rack and/or Anti-Vortex Device Analysis and Repair/Replacement Plan e. Dam Embankment Culvert or Pipe Analyses and Repair/Replacement Plan (Hydraulic or Structural) f. Outlet/Stilling Basin Analysis and Repair/Replacement Plan g. Dam Primary Mechanical Flow Control Evaluation and Repair Plan (Valves, Siphons, etc.) Dam or Lake Drain/Low-Level Outlet Analysis and Repair Plan h. Analyses and Repair/Replacement of Erosion or Deteriorated Appurtenant Structures

1. Final plans and specifications suitable for dam rehabilitation (May include final report incorporating multiple elements (i.e., #1-4) to consolidate into one grant application)
2. Installation of remote monitoring system instrumentation for the purposes of monitoring rainfall, water level, flow, and/or conditions at the dam, including but not limited to:

a. Cameras, float switches, rainfall gauge, depth sensor/pressure transducer, telemetry system b. Integration of a notification system that issue alerts to primary contacts when EAP stage thresholds are reached based on data observations c. Data transmission service costs (e.g. cellular service) for up to 4 years after installation

Project Type 3: Dam Repair, Safety Modifications or Removal

Total Pool of Matching Funds Available: $4,000,000 (allocation shared between Projects Type 2 & 3)

50% Project Cost Share with the following per project cost-share maximums based on ownership type and hazard classification :

Hazard Classification Owner Type High Significant Low Private $1,000,000 $500,000 $250,000

(DCR-VSWCB-018) () 15

[TABLE 17-1] Owner Type | | | | | Hazard Classification | | | | | | | | | | | | High | | | Significant | | | Low | | Private | | | $1,000,000 | | | $500,000 | | | $250,000 | |

[/TABLE]

• Page 18 ---

$500,000 $250,000 $125,000 Local Government

Table 1. Per-Project/Dam Grant Request Cost-Share Maximums

Criteria

1. Dam is regulated by the Dam Safety Act
2. Dam is a local government or privately owned dam.
3. Limited to one application per dam.
4. Has submitted an Operation and Maintenance Certificate (Conditional or Regular) application to DCR by the time of application.

1. Has submitted an Inundation Study, including hazard classification, on file to DCR by the time of application.
2. Has submitted an alteration permit, including any plans and specifications for any construction project to DCR no later than January 15, 2025.
3. After completion of construction activities, a record report is submitted to DCR before or when requesting reimbursement.
4. Total project maximum is based on project scope as determined by the hazard classification: a. For the maximum eligible cost-share amount, the project must bring the dam into full compliance with Dam Safety Act and its attendant Regulations. A Regular Operation and Maintenance Certificate application must be submitted prior to or with the reimbursement request. If unanticipated field conditions or other force majeure events delay the project beyond the performance period, the applicant may request a waiver from the Director for the issuance of a Conditional Certificate in lieu of a Regular Certificate. b. For the lower cost-share amount, the project must complete at least one major project as sanctioned in an approved alteration permit to address a known deficiency. The

dam may remain under a Conditional Operation and Maintenance Certificate after construction completion.

1. Deferred maintenance projects are not eligible for funding. 10. Dam removal projects may propose a design-build approach and be exempt from the requirements to have submitted plans and specifications and a hazard classification on file with DCR by the time of application. However, a construction emergency preparedness plan must be approved by DCR prior to starting construction activities. Dam removal projects are eligible for the maximum funding based on ownership type and hazard classification. On or prior to the reimbursement request, the owner’s engineer must provide certification (see 4VAC50-20-80) the dam was removed in accordance with the alteration permit.

Eligible Activities 11. Repair and/or Safety Modifications to address any of the following:

(DCR-VSWCB-018) () 16

[TABLE 18-1] Local Government | | $500,000 | $250,000 | $125,000

[/TABLE]

• Page 19 ---

a. Static failure mode: i. Fails to meet stability criteria II. Settlement, cracking, depressions/sinkholes, slumps/sloughs

III. Seepage IV. Instrumentation readings are indicative of a problem v. Known design and/or construction issues VI. Non-routine operational issues b. Hydrologic failure mode: i. Deficiency of spillway design flood II. No spillway redundancy III. Spillway condition is in poor or unsatisfactory condition IV. Non-routine operational issues c. Seismic failure mode: i. Does not meet state-required seismic stability criteria II. Embankment or foundation comprised of liquefiable materials d. Other repairs or safety modifications required by the Conditional Operation and Maintenance Certificate; however, maintenance activities are ineligible for funding.

1. Removal of an unsafe dam where no new impounding structure will be rebuilt.

Part IV: Dam Safety Scope of Work Narrative

All applications must include a Scope of Work Narrative that is an attachment to the application document. The Scope of Work Narrative shall include a detailed description of the need for assistance and the work to be conducted to address that need. Appendix B must be included in the submission. The Scope must also describe how the project meets the criteria in Appendix C, identify risk reduction benefits to be achieved from the project, goals and objectives, the

approach, milestones and deliverables of the project, a maintenance plan, if applicable, and any alternatives considered for each grant application. Additional details for each category are listed below.

1. Need for Assistance: Identify and describe any relevant issues or problems to be addressed by the project and the proposed activity to be accomplished by the grant program. o For Project Type 2, the applicant must submit a Regular or Conditional Operation and Maintenance Certificate Application and associated fee no later than the grant application deadline. A current professional engineer’s inspection must be on file with DCR at the time of the grant application submittal.

o For Project Type 3, the applicant must attach a copy of a current Conditional or Regular Operation and Maintenance Certificate

1. Scoring Criteria: Describe how the project meets each of the applicable scoring criteria contained in Appendix B and provide documentation where necessary. Documentation can be incorporated into the Scope of Work Narrative or included as attachments to the application. At a minimum, an applicant must identify if the project impacts any of the following: major public street or road; secondary public street or road; private-public street or road; limited use public street or road; private road or driveway; service or access road;

(DCR-VSWCB-018) () 17

• Page 20 ---

public water or sewer treatment; public water system; public sewer system; public pump or lift station; electric; gas; cable; communications; business structures; industrial structures; public structures (school, library, fire, police, etc.) Appendix B must be

completed and submitted with the application.

1. Risk Reduction Benefits Expected: Briefly discuss the expected results and risk reduction benefits of the project. The proposal should describe how the project is part of a complete approach to addressing dam deficiencies, such as those required in the Conditional Operation and Maintenance Certificate, where applicable, or flood impacts.

1. Goals and Objectives: Identify and describe the goals and objectives of the project. Include a description of the expected results of the completed project and explain the expected benefits of the project. This may include financial benefits, increased awareness, decreased risk, etc.

1. Approach, Milestones and Deliverables: Outline a plan of action laying out the scope and detail of how the proposed work will be accomplished with a timeline identifying expected completion dates. Determine milestones for the project that will be used to track progress.

Explain what deliverables can be expected at each milestone and identify the final project

deliverables. Identify other potential project partners. If assistance is sought for a project that will be carried out in concert with a federal agency, provide evidence of an agreement with the federal agency endorsing the project.

o Please note no analysis or study will be approved for reimbursement if the methodology used to conduct the analysis or study does not meet Dam Safety Regulations.

1. Maintenance Plan: Applications for Repair and Safety Modification projects must provide a maintenance plan demonstrating how the dam will be maintained for the expected lifespan of the project or at least 50 years. Ongoing operation and maintenance will be the financial responsibility of the applicant and will not be eligible for monies from the Fund.

1. Alternatives: Applications for Repair and Safety Modifications must briefly describe any alternatives to the proposed activity that have been considered and the reason the project was selected. One alternative should be doing nothing, and one alternative should be another project type that could reasonably address the issues identified. Explain these

alternatives and the reason the proposed project was selected. Include how the two alternatives differ from the proposed activity and how the cost and benefit of the alternatives compare to the proposed activity.

Part V: Dam Safety Budget and Budget Narrative Each application must include a detailed Budget and Budget Narrative explaining all proposed expenditures. The budget narrative is applicable to requests for all grant requests in this manual.

The following items must be included in the Budget Narrative:

(DCR-VSWCB-018) () 18

• Page 21 ---

● Estimated total project cost and amounts requested from the fund: This must reflect the total cost of bringing the project to completion and reflect the amount of funds requested from the Fund. Estimates for all work to be completed by third parties (engineers,

contractors, etc.) on the specified project should be included. Include a detailed breakdown of how this funding is proposed to be allocated between the applicant and the Fund. At a minimum, the budget and budget narrative should include a breakdown of salaries, fringe benefits, travel, equipment, supplies, construction, contracts, and other direct costs. The amount allocated to the Fund cannot exceed 50 percent of estimated total project costs and cannot exceed $1,000,000 in Project Type 3. Indirect costs are not allowable.

● Amount of cash funds available: The applicant must demonstrate the ability to pay the full cost (100%) of the project prior to reimbursement. Include a description of the source of these funds and evidence of the applicant’s ability to obtain these funds in order to complete the project.

● Resolution authorizing the request for funding: Localities seeking funding shall attach a resolution or other authorizing documentation approving the request for funding.

For private entities, a pledge agreement or other authorizing documentation is required for each contribution, signed by the authorized representative of the contributing organization and the applicant organization, if different, which must include the following: ● The name, address, and telephone number of the contributor; ● The name of the applicant organization; ● The title of the project for which the cash contribution is made; ● The source of funding for the cash contribution;

● The dollar amount of the cash contribution; and ● A statement that the contributor will pay the cash contribution during the agreement period.

In-kind services, indirect costs, loans, or other grant funds awarded from the Fund may NOT be used as match funds. Monies used to match other funding streams are also NOT allowed as a match for this grant program.

(DCR-VSWCB-018) () 19

• Page 22 ---

Part VI: Additional Funding Resources:

Private Entities:

Virginia Small Business Financing Authority

(VSBFA) - https://www.sbsd.virginia.gov/virginia-small-business-financing-authority/Contact: Anna Mackley, Chief Credit Officer & Operations Manager anna.mackley@sbsd.virginia.gov

Virginia Community Capital (VCC) - https://www.vacommunitycapital.org/Contact page for the lending team: https://www.vacommunitycapital.org/about/staff/lending/

Governments: Inquire with your locality about possible nutrient credit trading program funding or similar

programs.

USDA Rural Development Virginia Office - https://www.rd.usda.gov/va State Director: Elizabeth Walker Green 804-287-1552 Community Programs: Janice Stroud-Bickes 804-287-1615

(DCR-VSWCB-018) () 20

• Page 23 ---

Appendix A: Application Form for Dam Safety Projects Virginia Department of Conservation and Recreation Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Type of Applicant (Check one): □ Public Government Entity □ Private Entity

Dam Name:

Dam Inventory Number:

Name of Dam Owner (1):

Signature of Dam Owner:

Email Address: Phone No:

Name of Dam Owner (2):

Signature of Dam Owner:

Email Address: Phone No:

(If additional dam owners, please see page two of the application)

APPLICANT INFORMATION

Name of Applicant:

Signature of Applicant:

Mailing Address (1):

Mailing Address (2):

City: State: Zip:

Telephone Number: ( ) Cell Phone Number: ( _)

(DCR-VSWCB-018) () 21

• Page 24 ---

Email Address:

Project Type (select only one project type):

Project Type 1: Engineering Studies

◻ Dam Break Inundation Zone Analysis, Mapping, and Digitization ◻ Emergency Plan Development (EAP Emergency Action Plan) ◻ Professional Engineer Inspection

Project Type 2: Plans, Specifications and Engineering Studies

◻ Dam Break Inundation Zone Analysis, Mapping, and Digitization with Hazard Classification ◻ Emergency Plan Development (EAP Emergency Action Plan or EPP Emergency

Preparedness Plan) ◻ Spillway Capacity, Integrity, or Overtopping Analysis ◻ Geotechnical Investigation with Slope Stability Analysis, including Static, Seismic, and Spillway Stability ◻ Engineering and Design for one of the following: o Dam Embankment Wave Run-up or Wave Berm Construction and Reconstruction Analysis and Plan o Dam Graded Filter Drains, Toe Drains, Drainpipes and/or /Underdrain Analysis and Plan o Principal and/or Emergency Spillway and Repair/Replacement Plan o Trash Rack and/or Anti-Vortex Device Analysis and Repair/Replacement Plan o Dam Embankment Culvert or Pipe Analyses and Repair/Replacement Plan (Hydraulic or Structural) o Outlet/Stilling Basin Analysis and Repair/Replacement Plan o Dam Primary Mechanical Flow Control Evaluation and Repair Plan (Valves,

Siphons, etc.) Dam or Lake Drain/Low-Level Outlet Analysis and Repair Plan o Analyses and Repair/Replacement of Erosion or Deteriorated Appurtenant Structures ◻ Final plans and specifications suitable for dam rehabilitation (May include final report incorporating multiple elements (i.e., #1-4) to consolidate into one grant application) ◻ Installation of remote monitoring system

Project Type 3: Repairs, Safety Modifications and Removal

◻ Repairs and/or Safety Modifications to address any of the following: o Static failure mode: ▪ Fails to meet stability criteria

▪ Settlement, cracking, depressions/sinkholes, slumps/sloughs ▪ Seepage ▪ Instrumentation readings are indicative of a problem

(DCR-VSWCB-018) () 22

• Page 25 ---

▪ Known design and/or construction issues ▪ Non-routine operational issues o Hydrologic failure mode:

▪ Deficiency of spillway design flood ▪ No spillway redundancy ▪ Spillway condition is in poor or unsatisfactory condition ▪ Non-routine operational issues o Seismic failure mode: ▪ Does not meet state-required seismic stability criteria

▪ Embankment or foundation comprised of liquefiable materials o Other repairs or safety modifications required by the Conditional Operation and Maintenance Certificate - Does not include maintenance. ◻ Removal of an unsafe dam where no new impounding structure will be rebuilt

Location of Project (Include Maps):

Total Cost of Project: _

Total Amount Requested: ( ) ___________________________________ Not more than 50% of total costs Additional Dam Owners

Name of Dam Owner (3):

Signature of Dam Owner:

Email Address: Phone No:

Name of Dam Owner (4):

Signature of Dam Owner:

Email Address: Phone No:

(DCR-VSWCB-018) () 23

• Page 26 ---

Appendix B: Scoring Criteria for Dam Safety Projects Virginia Department of Conservation and Recreation Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Name of Applicant:

Dam Name:

Dam Inventory Number:

Dam Name: Dam Inventory Number: Eligibility Information

Criterion Description Check One

1. Is the applicant a local government (including counties, cities, towns, municipal corporations, authorities, districts, commissions, or political subdivisions created by the General Assembly or pursuant to the Constitution or laws of the Commonwealth,

or any combination of these) or a private entity (including dam owners, whether individuals, partnerships, corporations, homeowners association, or other nongovernmental entities)?

Local Government Eligible for consideration under this category

Private Entity Eligible for consideration under this category

Other Not eligible for consideration under this category

1. Has this or any portion of this project been included in any application previously funded by Fund? This does not include necessary updates to EAP, DBIZ, or other projects required due to updates to dam safety regulations Yes Not eligible for consideration under this category

No Eligible for consideration under this category

1. Has the applicant provided evidence of an ability to provide the required match funds?

Yes Eligible for consideration under this category

No Not eligible for consideration under this category

1. Has the applicant maintained proper Certification during the past twelve months or provided sufficient documentation regarding efforts to bring the dam into compliance? (Include copy)

Yes Eligible for consideration under this category

No Not eligible for consideration under this category

(DCR-VSWCB-018) () 24

[TABLE 26-1] Dam Name: | | | Dam Inventory Number: | | Eligibility Information | | | | | Criterion | | Description | | | Check One

1. Is the applicant a local government (including counties, cities, towns, municipal | | | | | corporations, authorities, districts, commissions, or political subdivisions created by | | | | | the General Assembly or pursuant to the Constitution or laws of the Commonwealth, | | | | | or any combination of these) or a private entity (including dam owners, whether | | | | | individuals, partnerships, corporations, homeowners association, or other | | | | | nongovernmental entities)? | | | | | Local Government | | Eligible for consideration under this category | | | Private Entity | | Eligible for consideration under this category | | | Other | | Not eligible for consideration under this category | | |
2. Has this or any portion of this project been included in any application previously | | | | | funded by Fund? This does not include necessary updates to EAP, DBIZ, or other | | | | | projects required due to updates to dam safety regulations | | | | | Yes | | Not eligible for consideration under this category | | | No | | Eligible for consideration under this category | | |
3. Has the applicant provided evidence of an ability to provide the required match | | | | | funds? | | | | | Yes | | Eligible for consideration under this category | | | No | | Not eligible for consideration under this category | | |
4. Has the applicant maintained proper Certification during the past twelve months or | | | | | provided sufficient documentation regarding efforts to bring the dam into | | | | | compliance? (Include copy) | | | | | Yes | | Eligible for consideration under this category | | | No | | Not eligible for consideration under this category | | |

[/TABLE]

• Page 27 ---

Dam Name: Dam Inventory Number: Scoring Information Points Criterion Point Value Awarded

1. What is the hazard classification or size of the dam? (select one)*

High Confirmed spillway deficiency 30 pts Significant Confirmed spillway deficiency 15 pts

Low Confirmed spillway deficiency 8 pts

Large Dam (Top Capacity ≥ 50,000 No hazard class determination 20 pts Ac-Ft or Height ≥ 100 Ft) Medium (Top Capacity ≥ 1,000 & < 50,000 Ac-Ft or Height ≥ 40 & < 100 No hazard class determination 10 pts Ft) Small (Top Capacity ≥ 15 & < 1,000 Ac-No hazard class determination 4 pts Ft or Height ≥ 6 & < 40 Ft) High Adequate spillway capacity 10 pts Significant Adequate spillway capacity 5 pts Low Adequate spillway capacity 2 pts

1. Number of residential units within the probable dam break inundation zone of the dam?* 101 or more 20 pts 21-100 15 pts

11-20 10 pts 1-10 5 pts

0 (or undetermined) 0 pts

1. Will public roadways, public utilities, and/or commercial structures be impacted within the dam’s probable dam break inundation zone?* Public Roadways, public utilities, and commercial structures 10 pts

Any two of the above 7 pts

One of the above 4 pts

None of the above 0 pts Unknown 0 pts

(DCR-VSWCB-018) () 25

[TABLE 27-1] Dam Name: | | | Dam Inventory Number: | | | Scoring Information | | | | | | Criterion | | | | Point Value | | Points | | | | | | Awarded

1. What is the hazard classification or size of the dam? (select one)* | | | | | | High | | Confirmed spillway deficiency | | 30 pts | | Significant | | Confirmed spillway deficiency | | 15 pts | | Low | | Confirmed spillway deficiency | | 8 pts | | Large Dam (Top Capacity ≥ 50,000 Ac-Ft or Height ≥ 100 Ft) | | No hazard class determination | | 20 pts | | Medium (Top Capacity ≥ 1,000 & < 50,000 Ac-Ft or Height ≥ 40 & < 100 Ft) | | No hazard class determination | | 10 pts | | Small (Top Capacity ≥ 15 & < 1,000 Ac-Ft or Height ≥ 6 & < 40 Ft) | | No hazard class determination | | 4 pts | | High | | Adequate spillway capacity | | 10 pts | | Significant | | Adequate spillway capacity | | 5 pts | | Low | | Adequate spillway capacity | | 2 pts | |
2. Number of residential units within the probable dam break inundation zone of the | | | | | | dam?* | | | | | | 101 or more | | | | 20 pts | | 21-100 | | | | 15 pts | | 11-20 | | | | 10 pts | | 1-10 | | | | 5 pts | | 0 (or undetermined) | | | | 0 pts | |
3. Will public roadways, public utilities, and/or commercial structures be impacted | | | | | | within the dam’s probable dam break inundation zone?* | | | | | | Public Roadways, public utilities, and commercial structures | | | | 10 pts | | Any two of the above | | | | 7 pts | | One of the above | | | | 4 pts | | None of the above | | | | 0 pts | | Unknown | | | | 0 pts | |

[/TABLE]

• Page 28 ---

1. What is the most common land use downstream within the likely dam break inundation zone?

Residential/Commercial/Industrial or equivalent 5 pts

Agricultural or equivalent 3 pts

Other 1 pts Unknown 0 pts

1. What is the public use of the impoundment created by the dam?

Public water supply, public water treatment, and public recreation access 5 pts (Does not include private or restricted access communities) Public water supply or public water treatment only 3 pts Public recreational access only (Does not include private or restricted 2 pts access communities) No public access or use (Includes private or restricted access 0 pts communities) 10. Eligible Projects (Select only one) Project Type 1: Unknown Hazard Dams

Dam Break Inundation Zone Analysis, Mapping, and Digitization 50 pts

Emergency Plan Development (EAP Emergency Action Plan) 50 pts

Professional Engineer Inspection 40 pts

Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation Dam Break Inundation Zone Analysis, Mapping, and Digitization 50 pts

Emergency Plan Development (EAP/EPP) 50 pts

Spillway Capacity, Integrity, or Overtopping Analysis 30 pts Geotechnical Investigation and/or Structural Analysis for Dam/Spillway 35 pts Stability

Engineering and Design 25 pts Final plans and specifications suitable for rehabilitation 45 pts

Installation of remote monitoring system 25 pts

Installation of remote monitoring system that transmits data to NWS 30 pts

(DCR-VSWCB-018) () 26

[TABLE 28-1]

1. What is the most common land use downstream within the likely dam break | | inundation zone? | | Residential/Commercial/Industrial or equivalent | 5 pts | Agricultural or equivalent | 3 pts | Other | 1 pts | Unknown | 0 pts |
2. What is the public use of the impoundment created by the dam? | | Public water supply, public water treatment, and public recreation access (Does not include private or restricted access communities) | 5 pts | Public water supply or public water treatment only | 3 pts | Public recreational access only (Does not include private or restricted access communities) | 2 pts | No public access or use (Includes private or restricted access communities) | 0 pts | 10. Eligible Projects (Select only one) | | Project Type 1: Unknown Hazard Dams | | Dam Break Inundation Zone Analysis, Mapping, and Digitization | 50 pts | Emergency Plan Development (EAP Emergency Action Plan) | 50 pts | Professional Engineer Inspection | 40 pts | Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation | | Dam Break Inundation Zone Analysis, Mapping, and Digitization | 50 pts | Emergency Plan Development (EAP/EPP) | 50 pts | Spillway Capacity, Integrity, or Overtopping Analysis | 30 pts | Geotechnical Investigation and/or Structural Analysis for Dam/Spillway Stability | 35 pts | Engineering and Design | 25 pts | Final plans and specifications suitable for rehabilitation | 45 pts | Installation of remote monitoring system | 25 pts | Installation of remote monitoring system that transmits data to NWS | 30 pts |

[/TABLE]

• Page 29 ---

Project Type 3: Repairs, Safety Modifications and Removal (Construction)

Repair or Safety Modification Addresses Failure Modes (Static/Hydrologic/Seismic) 50 pts

Other Repairs or Safety Modifications 25 pts

Removal of Unsafe Dam - No New Dam Rebuilt 30 pts Total Points

(DCR-VSWCB-018) () 27

[TABLE 29-1] Project Type 3: Repairs, Safety Modifications and Removal (Construction) | | Repair or Safety Modification | | Addresses Failure Modes (Static/Hydrologic/Seismic) | 50 pts | Other Repairs or Safety Modifications | 25 pts | Removal of Unsafe Dam - No New Dam Rebuilt | 30 pts | Total Points | |

[/TABLE]

• Page 30 ---

Appendix C: Documentation Checklist for Dam Safety

Applications Virginia Department of Conservation and Recreation

Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Name of Applicant:

Scope of Work Narrative

Required Components Included

Need for Assistance Narrative □ Yes □ No □ N/A Operation and Maintenance Certificate □ Yes □ No □ N/A

Application Appendix A □ Yes □ No

Scope of Work Narrative Need for Assistance □ Yes □ No

Completed Scoring Criteria Sheet in Appendix B □ Yes □ No

Risk Reduction Benefits Expected □ Yes □ No Goals and Objectives □ Yes □ No

Approach, Milestones and Deliverables □ Yes □ No

Maintenance Plan □ Yes □ No □ N/A

Alternatives □ Yes □ No □ N/A Budget Narrative

Supporting Documentation Included

Locality Applicants: Resolution or other documentation authorizing the □ Yes □ No request for funding Non-locality Applicants: Signed pledge agreement(s) or other authorizing □ Yes □ No documentation from each contributing organization

Detailed budget and narrative of how funding is to be allocated □ Yes □ No

Proof / Evidence of ability to fund the total cost (100%) of the project prior □ Yes □ No to Reimbursement

(DCR-VSWCB-018) () 28

[TABLE 30-1] Scope of Work Narrative | Required Components | Included Need for Assistance Narrative | □ Yes □ No □ N/A Operation and Maintenance Certificate | □ Yes □ No □ N/A Application Appendix A | □ Yes □ No Scope of Work Narrative | Need for Assistance | □ Yes □ No Completed Scoring Criteria Sheet in Appendix B | □ Yes □ No Risk Reduction Benefits Expected | □ Yes □ No Goals and Objectives | □ Yes □ No Approach, Milestones and Deliverables | □ Yes □ No Maintenance Plan | □ Yes □ No □ N/A Alternatives | □ Yes □ No □ N/A Budget Narrative | Supporting Documentation | Included Locality Applicants: Resolution or other documentation authorizing the request for funding | □ Yes □ No Non-locality Applicants: Signed pledge agreement(s) or other authorizing documentation from each contributing organization | □ Yes □ No Detailed budget and narrative of how funding is to be allocated | □ Yes □ No Proof / Evidence of ability to fund the total cost (100%) of the project prior to Reimbursement | □ Yes □ No

[/TABLE]

• Page 31 ---

Appendix D: Extension Request Form Virginia Department of Conservation and Recreation

Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Request to Amend Contract between Virginia Resources Authority and Grant Recipient of the 2025 Dam Safety, Flood Prevention and Protection Assistance Fund Grant

All projects are required to commence and to be completed within the twenty-four (24) months following the issuance of a signed agreement between the applicant and VRA on behalf of DCR.

A one-year extension may be granted at the discretion of DCR, provided such request is received not later than 120 days prior to the expiration of the original agreement. Requests should be emailed to dam@dcr.virginia.gov. If email is not available, please mail to:

Virginia Department of Conservation and Recreation

Attention: Dam Safety, Flood Prevention and Protection Assistance Fund Division of Dam Safety 600 East Main Street, 24th Floor Richmond, Virginia 23219

Grant Recipient:

Contact Name:

Mailing Address (1):

Mailing Address (2):

City: State: Zip:

Is this a new address? □ Yes □ No Has the Contact Name changed? □ Yes □ No

Telephone Number: ( _) Cell Phone Number: ( )

Email Address:

Grant Number:

Type of Project (Check one): □ Dam Safety □ Flood Prevention and Protection

(DCR-VSWCB-018) () 29

• Page 32 ---

Title of Project:

Dam Name:

Dam Inventory Number:

Total Cost of Project:

Total Amount Awarded:

Current Grant End Date:

Requested New End Date:

Please provide a detailed explanation for the extension request, including the reason work will not be completed during the initial grant period and a timeline for completion if approved. Please attach additional documentation as needed.

Grant Recipient Signature Date Requested

Grant Recipient Printed Name Title

(DCR-VSWCB-018) () 30

[TABLE 32-1]

[/TABLE]

• Page 33 ---

DCR Use Only

Virginia Department of Conservation and Recreation Date Approved Date Denied

Printed Name Title

VRA Use Only

Virginia Resources Authority Date Date Grant Received Modified

(DCR-VSWCB-018) () 31

[TABLE 33-1]

[/TABLE]

• Page 1 ---

C V

OMMONWEALTH OF IRGINIA

2025 Grant Manual for the

Virginia Dam Safety, Flood Prevention

and Protection Assistance Fund

2025 Grant Funding

Applications due: 4:00 p.m. EST, February 28, 2025

Developed by the Department of Conservation and Recreation with Virginia Resources Authority

TBD

(DCR-VSWCB-018) ()

• Page 2 ---

(DCR-VSWCB-018) (12/23)

• Page 3 ---

Table of Contents Part I: Introduction and Overview .................................................................................................... 3

Purpose of this Manual ................................................................................................................. 3 Dam Safety, Flood Prevention and Protection Fund Overview and Authority ...................................................................................................................................................... 3 Funding Sources ........................................................................................................................... 4

Definitions .................................................................................................................................... 5 Virginia Dam Safety Program ...................................................................................................... 6

Part II: General DCR Grant Eligibility and Application Procedures .................................. 7 DCR Conditions and Limitations for Grants .................................................................. 7 Application and Selection Process ............................................................................................... 9

1. General Submittal Information and Deadline ................................................................... 9
2. Project Application Contents .......................................................................................... 10
3. Application Review and Approval ................................................................................. 11

1. Project Commencement and Schedule for Completion .................................................. 11
2. Reporting and Close-Out Guidelines for Grant Recipients ............................................ 12
3. Grant Award and Administration ................................................................................... 12

1. Virginia Resources Authority Disbursement of Grant Funds......................................... 13 Part III: Eligible Dam Safety Projects ............................................................................................ 14 Dam Safety Project Descriptions and Eligible Activities ........................................................... 14

Project Type 1: Initial Engineering Studies for Unknown Hazard Dams ............................. 14 Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation ................ 14

Project Type 3: Dam Repair, Safety Modifications or Removal ........................................... 15 Part IV: Dam Safety Scope of Work .............................................................................. 17 Part V: Dam Safety Budget and Narrative ..................................................................... 1819

Part VI: Additional Funding Resources: .................................................................................... 2020 Appendix A: Dam Safety Application Form .............................................................. 21 Appendix B: Dam Safety Scoring Criteria ................................................................. 24

Appendix C: Dam Safety Documentation Checklist ........................................... 28 Appendix D: Extension Request Form ........................................................................................... 29

(DCR-VSWCB-018) () 1

• Page 4 ---

(DCR-VSWCB-018) () 2

• Page 5 ---

Part I: Introduction and Overview

Purpose of this Manual

This manual provides policies, criteria, conditions, and procedures for grant eligibility and awards from the Virginia Dam Safety, Flood Prevention, and Protection Assistance Fund to local governments and private entities for dam safety and floodplain issues pursuant to §10.1-603.16 et seq. of the

Code of Virginia.

Dam Safety, Flood Prevention and Protection Assistance Fund (Fund) Overview and Authority

The Fund was established to:

1. Provide matching grants to local governments (including Soil and Water Conservation Districts) and private entities owning regulated dams to improve dam safety.

Includes matching grants to local governments for orphan dams within their jurisdiction; state-owned, federally-owned, or unregulated dams under the Dam Safety Act (§10.1-604) are ineligible.

1. Provide matching grants to local governments for flood prevention or protection; applicants should pursue funding from the Community Flood Preparedness Fund (CFPF). Additional info here.

The Fund includes appropriations by the General Assembly, assessments on flood insurance premiums (§38.2-401.1), interest, loan repayments, investment income, and other eligible public and private funds.

The Fund is permanent, non-reverting, managed by VRA with DCR. Section 10.1-603.19 F states grant expenditures in any fiscal year shall not exceed 50% of the previous year's non-interest deposits and investment income.

Grants require at least 50% match; loans require at least 10% match, based on previous year's deposits and investment income, as per subsection G.

(DCR-VSWCB-018) () 3

• Page 6 ---

DCR Director is authorized to make grants to communities per §10.1-603.19:

§10.1-603.19 A. The Director may grant or loan funds to local governments for flood prevention/protection projects or studies.

§10.1-603.19 C. To protect public safety, the Director may grant funds to local governments and private entities for dam hazard classification, dam break analysis, mapping inundation zones, damage analysis, and emergency plans.

DCR Director will specify funding types and amounts before each period, authorized to spend per §10.1-603.16, after approval by the Virginia Soil and Water Conservation Board. Flood prevention and protection

Although eligible, no 2025 Grant Manual funding is allocated for flood prevention; applicants may seek funds from the Community Flood Preparedness Fund (CFPF) or RVRLF. Additional info available.

Funding Sources

A total of $5,000,000 is available for grants in this cycle. Funding includes:

Dam Safety, Flood Prevention and Protection Assistance Fund (Fund): $5,000,000. Per Section 10.1-603.19 F of the Code of Virginia, expenditures for grants in any fiscal year shall not exceed 50% of the previous year's non-interest deposits plus interest income. Up to $1,000,000 assists owners of regulatory-size dams without hazard classification; $4,000,000 is for locally or privately owned dams with known hazard classifications.

Up to $1,000,000 is available for regulatory-size dams with undetermined hazard classification.

• Private or local government-owned dams of unknown hazard classification
• Project Type 1: Initial engineering studies for unknown hazard dams

Up to $4,000,000 is available for regulatory dams, including:

• Private or local government-owned dams

(DCR-VSWCB-018) () 4

• Page 7 ---

• Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation
• Project Type 3: Repairs, Safety Modifications and Removal

• High Hazard Dams will receive priority for funding.

After the application deadline and pending Board approval, funding may shift between categories to meet application demands.

Definitions

Some terms in this manual and §10.1-603 of the Code have specific meanings that may differ from other contexts. For the purposes of this manual and the Fund:

● “Cost” means the total of all costs incurred by the local government or private entity as

reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project. It includes, without limitation, all necessary developmental, planning and feasibility studies, surveys, plans and specifications; hydrologic and hydraulic studies and analyses; architectural, engineering, financial, legal or other special services; mapping; the cost of acquisition of flood-prone land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings or improvements; site preparation and development, including demolition or removal of existing structures; construction and reconstruction; labor; materials, machinery and equipment; the reasonable costs of financing incurred by the local government or private entity in the course of the development of the project; carrying charges incurred before placing the project in service; necessary expenses incurred in connection with placing the project in service; the funding of accounts and reserves that the Authority may require; and the cost of other items that the Authority determines to be reasonable and necessary. ● “Local government” or “Locality” means any county, city, town, municipal corporation, authority, district, commission, or political subdivision created by the General Assembly

or pursuant to the Constitution or laws of the Commonwealth, or any combination of two or more of these entities. ● “Private entities” means dam owners, whether individuals, partnerships, corporations, or other nongovernmental entities. This additionally includes, but is not limited to, homeowners’ associations, planned unit developments as defined in §15.2-2201 of the Code of Virginia, and common interest communities as defined in §54.1-2345 of the Code of Virginia when recognized as dam owners. ● “Project” for the Dam Safety program means the design, repair, and safety modifications of a dam or impounding structure, as defined in §10.1-604, and identified in dam safety reports generated pursuant to §10.1-607 or §10.1-609; or the mapping and digitization of dam break inundation zones. The term includes, without limitation, the construction, modification, or repair of dams, levees, flood walls, channel improvements, or diversions. ● “Maintenance” means routine preventive activities by dam owners, including removal of woody plants, addressing rodent holes, parts replacement, and other preservation activities.

(DCR-VSWCB-018) () 5

• Page 8 ---

that do not require an alteration permit.

Virginia Dam Safety Program

Provisions of the Virginia Dam Safety Act (Act) (§10.1-604 et seq. of the Code of Virginia) and its attendant regulations (4 VAC 50-20-10 et seq.) promulgated by the Virginia Soil and Water Conservation Board and administered on behalf of the Board by DCR’s Division of Dam Safety, promote the proper and safe design, construction, operation, and maintenance of dams in the Commonwealth. The Act applies to dams that are twenty-five feet or higher and that create a maximum impoundment capacity of fifteen acre-feet or greater and dams that are six feet or higher and a maximum impoundment capacity of fifty acre-feet or greater. Exceptions are dams operated primarily for agricultural purposes which are less than 25 feet in height or which create a maximum impoundment capacity smaller than 100 acre-feet, dams owned or licensed by the United States government, dams licensed by the State Corporation Commission that are subject to a safety inspection program, water or silt retaining dams approved pursuant to §45.2-618 or §45.2-1301 of

the Code of Virginia (mining or quarry dams permitted by Department of Mines, Minerals, and Energy), and obstructions in a canal used to raise or lower water. The Virginia Dam Safety Program’s goal is to enhance public safety and the protection of property by ensuring that dams meet mandatory regulatory requirements and assisting dam owners and their licensed engineers in the proper construction, maintenance, and operations of their dams.

(DCR-VSWCB-018) () 6

• Page 9 ---

Part II: General DCR Grant Eligibility Criteria and

Application Procedures

DCR Conditions and Limitations for Making Grants

● Per §10.1-603.19 G of the Code of Virginia, any grants made from the Fund shall require a minimum of a 50 percent match. This match may be from a combination of funding sources, including federal dollars, so long as the Fund does not contribute more than 50 percent of total costs.

● Projects commencing after July 1, 2024, are eligible: o Owners pursuing projects prior to grant approval do so at their own risk. There is no guarantee of matching funds prior to grant approval by the Soil and Water Conservation Board. Matching funds are subject to limitations of the total funding amount, funding source purpose as designated by law, and grant application competitiveness based on the scoring criteria.

● Grant assistance will be awarded by category on a competitive scoring basis for eligible projects that meet the general conditions of this section and the eligibility criteria set out in the project category descriptions. The scoring criteria values for each project category are contained in Appendix B.

● Grant funds will be disbursed on a reimbursement basis and only after the completion of the approved project.

● For dams applying under Project Section 1: Unknown Hazard Dams, the dam must be operating under a Regular or Conditional Operation and Maintenance Certificate prior to reimbursement. As an alternative, the Regular or Conditional Operation and Maintenance Certificate Application and associated fee may be submitted at the time of reimbursement request.

● For dams seeking funding for Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation, the dam owner(s) must have submitted a Regular or Conditional Operation and Maintenance Certificate Application and associated fee no later than the

by the grant deadline; a current engineer’s inspection must be on file with DCR at submission.

● For dams seeking funding for Project Type 3: Repairs, Safety Modifications, or Removal, a current Regular or Conditional Operation and Maintenance Certificate application, must be submitted to DCR prior to the application deadline. An alteration permit, as well as plans and specifications, must be submitted to DCR for the project no later than January 15, 2025 for the grant application to be considered. Dam removal projects may propose a design-build approach and be exempt from the requirements to have approved plans and specifications and a hazard classification on file with DCR at the time of application.

However, a construction emergency preparedness plan must be approved by DCR prior

(DCR-VSWCB-018) () 7

• Page 10 ---

to starting construction activities.

● No analysis or study will be approved if the methodology used to conduct any analysis or study fails to meet applicable Dam Safety Regulations.

● Dam owners having or pursuing an Agricultural Exemption are not eligible for grants in this program. If the dam is to be repurposed as a non-agricultural dam, it would be eligible.

● Dam owners ultimately claiming size-exempt status are not eligible for grants in this program.

● All dam safety applications and supporting documentation must be submitted through the online Dam Safety Inventory System (DSIS). DSIS forms and data are located at https://www.dcr.virginia.gov/dam-safety-and-floodplains/ds-dsis. New users to DSIS are required to register through DSIS prior to application. It is recommended that dam owners sign up for DSIS access no later than December 31, 2024, in order to familiarize themselves with the system and avoid last-minute delays resulting in an unsuccessful submission.

● All successful “private entity” applicants will be required to provide identifying tax information (SSN/EIN) at the time of acceptance of award. All grant reimbursements are taxable and reportable to the IRS. DCR does not provide advice regarding the tax implications of grants; the grantee should seek any necessary guidance from a tax professional.

● Each application submitted must be for a discrete project that commenced on or after July 1, 2024 and ends not later than 24 months of an executed agreement. These specified dates constitute the required “project completion date.” Reimbursement requests must be submitted within 90 days following the project completion date.

Projects completed before July 1, 2024 ARE NOT eligible.

● No project or portion thereof identified in a previously awarded and reimbursed application is eligible for funding. For Dam Safety projects, this does not prohibit grant awards to a dam owner for an eligible, separate, and discrete project on the same dam.

● DCR, VRA, and the Board, at their discretion, reserve the right to provide funding at a level less than requested by the applicant or to refuse to fund an applicant’s request.

Reasons for such determinations include but are not limited to, incomplete applications, project ranking, the attainability of the proposal, creditworthiness of the applicant, total funding determined to be necessary to complete the project, failure to complete the project by the specified completion date, and total available funding.

● Should ownership of the dam change during the lifespan of the grant, the grant does not transfer. This does not include legal name changes where the new name remains clearly tied to the grant recipient.

(DCR-VSWCB-018) () 8

• Page 11 ---

● Applications will be accepted beginning November 1, 2024 and ending at 4:00 p.m. (EST) on February 28, 2025.

● In order for a grant to be authorized, an eligible project shall satisfy the following general conditions to DCR within the specified application period. o Where applicable, the applicant [if a locality or entity (for example, a corporation or homeowner’s association)] has formally adopted a resolution requesting assistance from the Fund or a statement indicating that a resolution will be proposed, and once approved, will be forwarded to DCR prior to the close of the application period.

Resolutions not received before the deadline will cause the

application disqualifies. The applicant must provide assurances of full funding, including signed verification per the Dam Safety Budget Narrative. Maintenance plans are required for repairs or safety modifications, demonstrating dam upkeep for at least 50 years; not needed for dam removals. All legal owners must sign; if only one owner applies, proof of signatory authority from all owners is required. If owners refuse to sign, a written request for exemption with justification must be included, subject to DCR Director approval. For projects involving federal agencies, a resolution or agreement must be submitted.

with a federal agency, the applicant must have an agreement or resolution endorsing the project, including cost-sharing, with a copy submitted with the application.

Application and Selection Process

1. General Submittal Information and Deadline

A complete electronic application file with all required attachments must be submitted through

DSIS.

Files should be saved as follows: ● Dam Safety projects: Dam inventory number.pdf (example: 190054. pdf). If multiple applications are for the same inventory number, then please use 190054-1.pdf.

If DSIS submission is not possible, approval to submit outside DSIS may be

considered under extenuating circumstances. Justification must be sent to dam@dcr.virginia.gov by Jan 30, 2025. If approved, the applicant must

(DCR-VSWCB-018) () 9

• Page 12 ---

submit the application and all attachments to dam@dcr.virginia.gov. If email is not possible, send three complete copies (including one signed) with all attachments and supporting

documentation, to the Virginia Department of Conservation and Recreation at the address below:

Virginia DCR, Dam Safety, Flood Prevention & Protection Fund, 600 E. Main St., 24th Floor Richmond, Virginia 23219

Applications must be printed on one-sided, 8.5 x 11-inch pages. Photographs are acceptable, with images and captions mounted on

1. 5 x 11-inch paper and be of a quality suitable for reproduction by photocopier. It is not necessary to submit three sets of original images, but all reproduced images must be clear and discernable.

Images and photos will not be returned.

Ensure signature pages are completed before submission.

Applications without signatures will be incomplete and disqualified from funding.

consideration. Applications are accepted from Nov 1, 2024, until 4:00 p.m. (EST) on Feb 28, 2025. Late submissions will not be considered.

Applications will be scored, ranked, and funded per Appendix B criteria and available funds.

General inquiries: Contact DCR Dam Safety at (804) 371-6095 or dam@dcr.virginia.gov.

1. Project Application Contents

Organizational info (Appendix A): includes project title, category, location, requested funds, and contact details.

Scope of Work Narrative (attached to Application Form)

The requirements for the project’s Scope of Work Narrative are outlined in Part III of this manual. A completed scoring criteria sheet must also be included to support the Scope of Work Narrative.

Budget Narrative (attached): details the project budget and proof of full funding, as outlined in Part III of the manual.

(DCR-VSWCB-018) () 10

• Page 13 ---

1. Application Review and Approval

Qualifying projects are selected based on competitive scoring.

DCR will follow this procedure to determine application qualification.

DCR’s Division of Dam Safety will review applications for completeness, eligibility, and merit based on criteria in this manual and relevant Appendix.

DCR will recommend qualified projects to the Virginia Soil and Water Conservation Board, which will approve funding per this manual.

After Board approval and necessary submittals, applications are forwarded to VRA for grant agreement and funding; for ARPA funds, DCR will execute the agreement after approval.

1. Project Commencement and Schedule for Completion

Projects may start on or after the application period begins and within 24 months of signed agreement; delayed projects risk funding withdrawal and redistribution at the Board’s discretion.

Applicants may reapply in subsequent rounds if eligible; funds may be redistributed at the Board’s discretion.

Projects may request a 1-year extension by submitting the “Extension Request Form” at least 120 days before agreement expiration via email to dam@dcr.virginia.gov or by mail to:

Virginia Department of Conservation and Recreation Attention: Dam Safety, Flood Prevention and Protection Assistance Fund

Division of Dam Safety 600 East Main Street, 24th Floor

(DCR-VSWCB-018) () 11

• Page 14 ---

Richmond, Virginia 23219

1. Reporting and Close-Out Guidelines for Grant Recipients

Where applicable, DCR will conduct project inspections as necessary to ensure conformance to grant terms. Final project deliverables defined in the approved Scope of Work are due to DCR within 30 days following the project end date unless another date is approved by DCR. All materials shall be provided digitally to DCR through the Dam Safety Inventory System (DSIS) as a requirement for receipt of this grant. Although not required, printed materials may also be submitted to DCR in addition to the DSIS submittal. Printed material may not substitute for DSIS submittal. ● All documents must be provided in PDF and/or a Microsoft Word-compatible format, including any embedded maps or other figures/illustrations. ● All engineering files (including hydrologic and hydraulic studies) and assumptions necessary to replicate various analyses or other calculations must be provided in a format compatible with the software used to perform those calculations; likewise, all output files are also required.

● All tabular information not included in the engineering files above, whether contained within any report or appendix, which was used as the basis for any calculation, shall be provided in a Microsoft Excel compatible format or Microsoft Access compatible format.

• All map data shall be delivered as a geodatabase or individual shapefiles. Additionally, maps shall be provided in a PDF format if not already included embedded within the report(s). o If derived from CAD or another non-GIS workflow, data must be converted into a GIS format. o See the Virginia Soil and Water Conservation Board's Guidance Document for specific requirements and direction for mapping - Dam Break Inundation Zone Modeling and Mapping Procedures (PDF) (Revised June 28, 2018, and Sept. 27, 2018).

1. Grant Award and Administration

After the May 2025 Board approval, DCR will notify applicants by letter and post awards on the DCR grants webpage.

VRA or DCR will email grant agreements; if no email, they will be mailed. Signed agreements must be returned within 90 days to:

Peter D’Alema, VRA

(DCR-VSWCB-018) () 12

• Page 15 ---

1111 E. Main Street, Suite 1920 Richmond, VA 23219 PDAlema@virginiaresources.org

(804) 616-3446

Unreturned signed grant agreements within 90 days will result in fund rescission.

C. Within 30 days after the dam safety project is completed, the applicant shall submit digital

copies of the completed engineering work to the Regional Dam Safety Engineer for approval. Exhibit D Form of Requisition along with the Certificate of the Consulting Engineer Form, both included in the grant agreement, must be included with the dam safety project submittal to the Regional Engineer. Electronic submittals shall be made to dam@dcr.virginia.gov. Names and mailing addresses of DCR’s Regional Dam Safety Engineers are available online at http://www.dcr.virginia.gov/dam-safety-and-floodplains/dsfpmcontx.

Reimbursement requests must be submitted within 90 days of project completion, including required forms, proof of payment, and invoices, to dam@dcr.virginia.gov or:

Virginia Department of Conservation and Recreation Attention: Dam Safety, Flood Prevention and Protection Assistance Fund Division of Dam Safety 600 East Main Street, 24th Floor

Richmond, Virginia 23219

Invoices must be detailed, project-specific, and sufficient to verify work and hours related to the approved project.

For DBIZ or EAP projects, evidence of filing maps with local planning, emergency management, and VDEM is required before reimbursement.

1. Virginia Resources Authority Disbursement of Grant Funds

Grant funds shall be disbursed on a reimbursement basis only. All requests for disbursement

shall be delivered to DCR for approval according to the reimbursement terms of the grant manual and grant agreement. DCR shall forward the approved request to VRA for payment to the applicant for projects not funded through ARPA monies. Neither DCR nor VRA will disburse funds prior to receipt of a fully executed grant agreement signed by the grant recipient and subsequently signed by VRA’s Executive Director or signed by the grant recipient and

(DCR-VSWCB-018) () 13

• Page 16 ---

subsequently signed by DCR’s Director. Where applicable, DCR will conduct site visits and inspections to monitor project compliance. A checklist for reimbursement will be included as Exhibit E in the Grant Agreement.

Part III: Eligible Dam Safety Projects

Dam Safety Project Descriptions and Eligible Activities

This category assists dam owners in complying with the Dam Safety Act (§10.1-604) and Virginia Impounding Structure Regulations (4VAC50-20-10) or removing unsafe dams. Funding is available in three categories; previously funded activities are ineligible.

Project Type 1: Initial Engineering Studies for Unknown Hazard Dams

Total Matching Funds Available: $1,000,000

Criteria

1. Dam is a local government or privately owned dam.
2. Must be a dam with an undetermined hazard classification.
3. Dam owners without a Letter of Engagement must notify their Dam Safety Regional Engineer of intent to apply for grants under this project by January 15th.

1. Only one project type may be selected per application; multiple applications may be submitted.

Eligible Activities

1. Dam Break Inundation Zone Analysis, Mapping, and Digitization
2. Emergency Plan Development (EAP Emergency Action Plan)
3. Professional Engineer Inspection Project

Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation

Total Pool of Matching Funds Available: $4,000,000 (allocation shared between Projects Type 2 & 3)

Criteria

1. Dam is regulated by the Dam Safety Act.
2. Dam is a local government or privately owned dam.
3. Only one project type may be selected per application; multiple applications may be submitted.
4. Has an approved, active Conditional Operation and Maintenance Certificate on file with DCR at application time or may submit an application for an Operations and Maintenance Certificate by the deadline.
5. An Alteration Permit application and Record Report must be submitted and approved by DCR during the project and before reimbursement for eligible

(DCR-VSWCB-018) () 14

• Page 17 ---

activity #7 (Installation of a remote monitoring system).

1. High Hazard Dams are given priority.

Eligible Activities

1. Dam Break Inundation Zone Analysis, Mapping, and Digitization with Hazard Classification
2. Emergency Plan Development (EAP or EPP Emergency Plans)
3. Spillway Capacity, Integrity, and/or Overtopping Analysis
4. Geotechnical Investigation with Slope Stability Analysis, including Static, Seismic, and Spillway/Dam Stability
5. Engineering and Design for one of: Dam Embankment Wave Run-up or Wave Berm Construction and Reconstruction Analysis and Plan

b. Dam-Graded Filter Drains, Toe Drains, Drainpipes, and/or Underdrain Analysis and Plan c. Principal/Emergency Spillway and Repair/Replacement Plan d. Trash Rack/Anti-Vortex Device Analysis and Repair/Replacement Plan e. Dam Embankment Culvert/Pipe Analyses and Repair/Replacement (Hydraulic/Structural) f. Outlet/Stilling Basin Analysis and Repair/Replacement Plan g. Dam Mechanical Flow Control Evaluation and Repair (Valves, Siphons, etc.) Dam or Lake Drain/Low-Level Outlet Analysis and Repair Plan h. Erosion or Deteriorated Appurtenant Structures Repairs/Analysis

1. Final plans and specifications for dam rehabilitation, possibly including a final report consolidating elements (i.e., #1-4) into one grant application.
2. Installation of remote monitoring instrumentation for rainfall, water level, flow, and conditions at the dam, including but not limited to:

a. Cameras, float switches, rainfall gauge, depth sensor/pressure transducer, telemetry system b. Notification system integration for alerts at EAP thresholds c. Data transmission costs (e.g. cellular) for up to 4 years

Project Type 3: Dam Repair, Safety Modifications or Removal

Total Pool of Matching Funds Available: $4,000,000 (allocation shared between Projects Type 2 & 3)

50% Project Cost Share with maximums based on ownership type and hazard classification:

Hazard Classification Owner Type High Significant Low Private $1,000,000 $500,000 $250,000

(DCR-VSWCB-018) () 15

[TABLE 17-1] Owner Type | | | | | Hazard Classification | | | | | | | | | | | | High | | | Significant | | | Low | | Private | | | $1,000,000 | | | $500,000 | | | $250,000 | |

[/TABLE]

• Page 18 ---

$500,000 $250,000 $125,000 Local Government

Table 1. Per-Project/Dam Grant Request Cost-Share Maximums

Criteria

1. Dam is regulated by the Dam Safety Act
2. Dam is a local government or privately owned dam.
3. Limited to one application per dam.
4. Has submitted an Operation and Maintenance Certificate (Conditional or Regular) application to DCR by application time.

1. Has submitted an Inundation Study, including hazard classification, to DCR by application time.
2. Submitted an alteration permit, including plans and specifications for construction to DCR by January 15, 2025.
3. Submit a record report to DCR after construction or when requesting reimbursement.
4. Project maximum depends on scope and hazard classification: a. For full cost-share, dam must comply with Dam Safety Act; submit Regular O&M Certificate with reimbursement; delays may warrant a waiver for Conditional Certificate. b. For lower cost-share, complete at least one major project per approved alteration permit to address deficiencies.

dam may remain under a Conditional Operation and Maintenance Certificate after construction completion.

1. Deferred maintenance projects are not eligible for funding. 10. Dam removal projects may propose a design-build approach and be exempt from the requirements to have submitted plans and specifications and a hazard classification on file with DCR by the time of application. A construction emergency plan must be approved by DCR before starting construction. Dam removal projects are eligible for the maximum funding based on ownership type and hazard classification. On or prior to the reimbursement request, the owner’s engineer must provide certification (see 4VAC50-20-80) the dam was removed in accordance with the alteration permit.

Eligible Activities 11. Repair and/or Safety Modifications for the following:

(DCR-VSWCB-018) () 16

[TABLE 18-1] Local Government | | $500,000 | $250,000 | $125,000

[/TABLE]

• Page 19 ---

a. Static failure mode: i. Fails stability criteria II. Settlement, cracking, sinkholes, slumps/sloughs

III. Seepage IV. Instrumentation issues V. Known design/construction problems VI. Non-routine operational issues b. Hydrologic failure: i. Spillway design flood deficiency II. No spillway redundancy III. Poor spillway condition IV. Non-routine operational issues c. Seismic failure: i. Fails seismic criteria II. Liquefiable embankment/foundation d. Other repairs per Conditional O&M Certificate; maintenance activities ineligible.

1. Remove an unsafe dam with no new impoundment structure rebuilt.

Part IV: Dam Safety Scope of Work Narrative

All applications must include a Scope of Work Narrative attachment detailing the need, work, Appendix B, how it meets Appendix C criteria, risk reduction benefits, goals, and objectives.

Approach, milestones, deliverables, maintenance plan (if applicable), and alternatives considered. Additional details follow.

1. Need for Assistance: Identify and describe any relevant issues or problems to be addressed by the project and the proposed activity to be accomplished by the grant program. o For Project Type 2, the applicant must submit a Regular or Conditional Operation and Maintenance Certificate Application and associated fee no later than the by the grant deadline; a current engineer’s inspection must be on file with DCR at submission.

o For Project Type 3, the applicant must attach a copy of a current Conditional or Regular Operation and Maintenance Certificate

1. Scoring Criteria: Describe how the project meets criteria in Appendix B and include documentation. Identify impacts on major/public/secondary/private roads, limited use roads, driveways, or access roads.

(DCR-VSWCB-018) () 17

• Page 20 ---

Public water/sewer treatment, systems, pump stations, electric, gas, cable, communications, business, industrial, public structures (schools, fire, police). Appendix B must be

completed and submitted with the application.

1. Risk Reduction Benefits Expected: Briefly describe expected results and risk reduction, including how the project addresses dam deficiencies or flood impacts as part of a complete approach.

1. Goals and Objectives: Describe project goals, expected results, and benefits, including financial gains, awareness, or risk reduction.

1. Approach, Milestones and Deliverables: Outline a plan of action laying out the scope and detail of how the proposed work will be accomplished with a timeline identifying expected completion dates. Determine milestones for the project that will be used to track progress.

Explain expected deliverables at each milestone and identify the final project

Deliverables. Identify potential project partners. If collaborating with a federal agency, provide endorsement evidence.

o Please note no analysis or study will be approved for reimbursement if the methodology used to conduct the analysis or study does not meet Dam Safety Regulations.

1. Maintenance Plan: Repair and Safety Modification applications must include a plan for dam maintenance over at least 50 years. Ongoing O&M is the applicant’s financial responsibility and not Fund-eligible.

1. Alternatives: Describe alternatives considered, including doing nothing and other project types, and reasons for selecting the proposed activity.

Include alternatives, reasons for selection, differences, and cost-benefit comparison with proposed activity.

Part V: Dam Safety Budget and Budget Narrative Each application must include a detailed Budget and Budget Narrative explaining all proposed expenditures. The budget narrative is applicable to requests for all grant requests in this manual.

Include these items in the Budget Narrative:

(DCR-VSWCB-018) () 18

• Page 21 ---

● Estimated total project cost and amounts requested from the fund: This must reflect the total cost of bringing the project to completion and reflect the amount of funds requested from the Fund. Estimates for all work to be completed by third parties (engineers,

contractors, etc.) on the project should be included. Provide a detailed funding allocation between applicant and Fund, including salaries, benefits, travel, equipment, supplies, construction, contracts, and direct costs. Fund allocation cannot exceed 50% of total costs or $1,000,000 in Project Type 3. Indirect costs are not allowed.

● Amount of cash funds available: The applicant must demonstrate the ability to pay the full cost (100%) of the project prior to reimbursement. Include a description of the source of these funds and evidence of the applicant’s ability to obtain these funds in order to complete the project.

● Resolution authorizing the request for funding: Localities seeking funding shall attach a resolution or other authorizing documentation approving the request for funding.

For private entities, a pledge agreement or other authorizing documentation is required for each contribution, signed by the authorized representative of the contributing organization and the applicant organization, if different, which must include the following: ● The name, address, and telephone number of the contributor; ● The name of the applicant organization; ● The title of the project for which the cash contribution is made; ● The source of funding for the cash contribution;

● The dollar amount of the cash contribution; and ● A statement that the contributor will pay the cash contribution during the agreement period.

In-kind services, indirect costs, loans, or other grant funds awarded from the Fund may NOT be used as match funds. Monies used to match other funding streams are also NOT allowed as a match for this grant program.

(DCR-VSWCB-018) () 19

• Page 22 ---

Part VI: Additional Funding Resources:

Private Entities:

Virginia Small Business Financing Authority

(VSBFA) - https://www.sbsd.virginia.gov/virginia-small-business-financing-authority/Contact: Anna Mackley, Chief Credit Officer & Operations Manager anna.mackley@sbsd.virginia.gov

Virginia Community Capital (VCC) - https://www.vacommunitycapital.org/Contact page for the lending team: https://www.vacommunitycapital.org/about/staff/lending/

Governments: Inquire locally about nutrient credit trading program funding or similar

programs.

USDA Rural Development Virginia Office - https://www.rd.usda.gov/va State Director: Elizabeth Walker Green 804-287-1552 Community Programs: Janice Stroud-Bickes 804-287-1615

(DCR-VSWCB-018) () 20

• Page 23 ---

Appendix A: Application Form for Dam Safety Projects Virginia Department of Conservation and Recreation Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Type of Applicant (Check one): □ Public Government Entity □ Private Entity

Dam Name:

Dam Inventory Number:

Name of Dam Owner (1):

Signature of Dam Owner:

Email Address: Phone No:

Name of Dam Owner (2):

Signature of Dam Owner:

Email Address: Phone No:

(If additional dam owners, please see page two of the application)

APPLICANT INFORMATION

Name of Applicant:

Signature of Applicant:

Mailing Address (1):

Mailing Address (2):

City: State: Zip:

Telephone Number: ( ) Cell Phone Number: ( _)

(DCR-VSWCB-018) () 21

• Page 24 ---

Email Address:

Project Type (select one):

Project Type 1: Engineering Studies

◻ Dam Break Inundation Analysis, Mapping, and Digitization ◻ Emergency Plan Development (EAP) ◻ Professional Engineer Inspection

Project Type 2: Plans, Specifications and Engineering Studies

◻ Dam Inundation Analysis, Mapping, and Digitization with Hazard Classification ◻ Emergency Plan Development (EAP or EPP)

Preparedness Plan) ◻ Spillway Capacity, Integrity, or Overtopping Analysis ◻ Geotechnical Investigation with Slope Stability Analysis, including Static, Seismic, and Spillway Stability ◻ Engineering and Design for one of the following: o Dam Embankment Wave Run-up or Wave Berm Construction and Reconstruction Analysis and Plan o Dam Graded Filter Drains, Toe Drains, Drainpipes and/or /Underdrain Analysis and Plan o Principal and/or Emergency Spillway and Repair/Replacement Plan o Trash Rack and/or Anti-Vortex Device Analysis and Repair/Replacement Plan o Dam Embankment Culvert or Pipe Analyses and Repair/Replacement Plan (Hydraulic or Structural) o Outlet/Stilling Basin Analysis and Repair/Replacement Plan o Dam Primary Mechanical Flow Control Evaluation and Repair Plan (Valves,

Siphons, etc.) Dam or Lake Drain/Low-Level Outlet Analysis and Repair Plan o Analyses and Repair/Replacement of Erosion or Deteriorated Appurtenant Structures ◻ Final plans and specifications for dam rehabilitation, possibly including a final report consolidating elements (i.e., #1-4) into one grant application. ◻ Installation of remote monitoring system

Project Type 3: Repairs, Safety Modifications and Removal

◻ Repairs or safety modifications addressing: static failure (fails stability criteria),

▪ Settlement, cracking, depressions/sinkholes, slumps/sloughs ▪ Seepage ▪ Instrumentation readings are indicative of a problem

(DCR-VSWCB-018) () 22

• Page 25 ---

▪ Known design and/or construction issues ▪ Non-routine operational issues o Hydrologic failure mode:

▪ Deficiency of spillway design flood ▪ No spillway redundancy ▪ Spillway condition is in poor or unsatisfactory condition ▪ Non-routine operational issues o Seismic failure mode: ▪ Does not meet state-required seismic stability criteria

▪ Embankment or foundation comprised of liquefiable materials o Other repairs or safety modifications required by the Conditional Operation and Maintenance Certificate - Does not include maintenance. ◻ Removal of an unsafe dam where no new impounding structure will be rebuilt

Location of Project (Include Maps):

Total Cost of Project: _

Total Amount Requested: ( ) ___________________________________ Not more than 50% of total costs Additional Dam Owners

Name of Dam Owner (3):

Signature of Dam Owner:

Email Address: Phone No:

Name of Dam Owner (4):

Signature of Dam Owner:

Email Address: Phone No:

(DCR-VSWCB-018) () 23

• Page 26 ---

Appendix B: Scoring Criteria for Dam Safety Projects Virginia Department of Conservation and Recreation Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Name of Applicant:

Dam Name:

Dam Inventory Number:

Dam Name: Dam Inventory Number: Eligibility Information

Criterion Description Check One

1. Is the applicant a local government (counties, cities, towns, municipal corporations, authorities, districts, commissions, or political subdivisions created by the General Assembly or laws of the Commonwealth?

or any combination of these) or a private entity (including dam owners, whether individuals, partnerships, corporations, homeowners association, or other nongovernmental entities)?

Local Government Eligible for consideration under this category

Private Entity Eligible for consideration under this category

Other Not eligible for consideration under this category

1. Has this or any portion of this project been included in any application previously funded by Fund? This does not include necessary updates to EAP, DBIZ, or other projects required due to updates to dam safety regulations Yes Not eligible for consideration under this category

No Eligible for consideration under this category

1. Has the applicant provided evidence of ability to supply required match funds?

Yes Eligible for consideration under this category

No Not eligible for consideration under this category

1. Has the applicant maintained proper Certification in the past 12 months or provided documentation of efforts to achieve compliance? (Include copy)

Yes Eligible for consideration under this category

No Not eligible for consideration under this category

(DCR-VSWCB-018) () 24

[TABLE 26-1] Dam Name: | | | Dam Inventory Number: | | Eligibility Information | | | | | Criterion | | Description | | | Check One

1. Is the applicant a local government (including counties, cities, towns, municipal | | | | | corporations, authorities, districts, commissions, or political subdivisions created by | | | | | the General Assembly or pursuant to the Constitution or laws of the Commonwealth, | | | | | or any combination of these) or a private entity (including dam owners, whether | | | | | individuals, partnerships, corporations, homeowners association, or other | | | | | nongovernmental entities)? | | | | | Local Government | | Eligible for consideration under this category | | | Private Entity | | Eligible for consideration under this category | | | Other | | Not eligible for consideration under this category | | |
2. Has this or any portion of this project been included in any application previously | | | | | funded by Fund? This does not include necessary updates to EAP, DBIZ, or other | | | | | projects required due to updates to dam safety regulations | | | | | Yes | | Not eligible for consideration under this category | | | No | | Eligible for consideration under this category | | |
3. Has the applicant provided evidence of an ability to provide the required match | | | | | funds? | | | | | Yes | | Eligible for consideration under this category | | | No | | Not eligible for consideration under this category | | |
4. Has the applicant maintained proper Certification during the past twelve months or | | | | | provided sufficient documentation regarding efforts to bring the dam into | | | | | compliance? (Include copy) | | | | | Yes | | Eligible for consideration under this category | | | No | | Not eligible for consideration under this category | | |

[/TABLE]

• Page 27 ---

Dam Name: Dam Inventory Number: Scoring Information Points Criterion Point Value Awarded

1. What is the dam's hazard classification or size? (select one)*

High Confirmed spillway deficiency 30 pts Significant Confirmed spillway deficiency 15 pts

Low Confirmed spillway deficiency 8 pts

Large Dam (Top Capacity ≥ 50,000 No hazard class determination 20 pts Ac-Ft or Height ≥ 100 Ft) Medium (Top Capacity ≥ 1,000 & < 50,000 Ac-Ft or Height ≥ 40 & < 100 No hazard class determination 10 pts Ft) Small (Top Capacity ≥ 15 & < 1,000 Ac-No hazard class determination 4 pts Ft or Height ≥ 6 & < 40 Ft) High Adequate spillway capacity 10 pts Significant Adequate spillway capacity 5 pts Low Adequate spillway capacity 2 pts

1. Number of residential units within the probable dam break inundation zone of the dam?* 101 or more 20 pts 21-100 15 pts

11-20 10 pts 1-10 5 pts

0 (or undetermined) 0 pts

1. Will public roadways, public utilities, and/or commercial structures be impacted within the dam’s probable dam break inundation zone?* Public Roadways, public utilities, and commercial structures 10 pts

Any two of the above 7 pts

One of the above 4 pts

None of the above 0 pts Unknown 0 pts

(DCR-VSWCB-018) () 25

[TABLE 27-1] Dam Name: | | | Dam Inventory Number: | | | Scoring Information | | | | | | Criterion | | | | Point Value | | Points | | | | | | Awarded

1. What is the hazard classification or size of the dam? (select one)* | | | | | | High | | Confirmed spillway deficiency | | 30 pts | | Significant | | Confirmed spillway deficiency | | 15 pts | | Low | | Confirmed spillway deficiency | | 8 pts | | Large Dam (Top Capacity ≥ 50,000 Ac-Ft or Height ≥ 100 Ft) | | No hazard class determination | | 20 pts | | Medium (Top Capacity ≥ 1,000 & < 50,000 Ac-Ft or Height ≥ 40 & < 100 Ft) | | No hazard class determination | | 10 pts | | Small (Top Capacity ≥ 15 & < 1,000 Ac-Ft or Height ≥ 6 & < 40 Ft) | | No hazard class determination | | 4 pts | | High | | Adequate spillway capacity | | 10 pts | | Significant | | Adequate spillway capacity | | 5 pts | | Low | | Adequate spillway capacity | | 2 pts | |
2. Number of residential units within the probable dam break inundation zone of the | | | | | | dam?* | | | | | | 101 or more | | | | 20 pts | | 21-100 | | | | 15 pts | | 11-20 | | | | 10 pts | | 1-10 | | | | 5 pts | | 0 (or undetermined) | | | | 0 pts | |
3. Will public roadways, public utilities, and/or commercial structures be impacted | | | | | | within the dam’s probable dam break inundation zone?* | | | | | | Public Roadways, public utilities, and commercial structures | | | | 10 pts | | Any two of the above | | | | 7 pts | | One of the above | | | | 4 pts | | None of the above | | | | 0 pts | | Unknown | | | | 0 pts | |

[/TABLE]

• Page 28 ---

1. What is the most common land use downstream within the likely dam break inundation zone?

Residential/Commercial/Industrial or equivalent 5 pts

Agricultural or equivalent 3 pts

Other 1 pts Unknown 0 pts

1. What is the public use of the dam-created impoundment?

Public water supply, treatment, and recreation access 5 pts; supply or treatment only 3 pts; recreation only 2 pts; no access 0 pts. 10. Eligible Projects (Select one): Project Type 1: Unknown Hazard Dams

Dam Break Inundation Zone Analysis, Mapping, and Digitization 50 pts

Emergency Plan Development (EAP) 50 pts

Professional Engineer Inspection 40 pts

Project Type 2: Plans, Specs, Engineering Studies, Instrumentation, Dam Inundation Analysis, Mapping, Digitization 50 pts

Emergency Plan Development (EAP/EPP) 50 pts

Spillway Capacity, Integrity, or Overtopping Analysis 30 pts Geotechnical Investigation and/or Structural Analysis for Dam/Spillway 35 pts Stability

Engineering and Design 25 pts Final plans and specifications suitable for rehabilitation 45 pts

Installation of remote monitoring system 25 pts

Installation of remote monitoring system that transmits data to NWS 30 pts

(DCR-VSWCB-018) () 26

[TABLE 28-1]

1. What is the most common land use downstream within the likely dam break | | inundation zone? | | Residential/Commercial/Industrial or equivalent | 5 pts | Agricultural or equivalent | 3 pts | Other | 1 pts | Unknown | 0 pts |
2. What is the public use of the impoundment created by the dam? | | Public water supply, public water treatment, and public recreation access (Does not include private or restricted access communities) | 5 pts | Public water supply or public water treatment only | 3 pts | Public recreational access only (Does not include private or restricted access communities) | 2 pts | No public access or use (Includes private or restricted access communities) | 0 pts | 10. Eligible Projects (Select only one) | | Project Type 1: Unknown Hazard Dams | | Dam Break Inundation Zone Analysis, Mapping, and Digitization | 50 pts | Emergency Plan Development (EAP Emergency Action Plan) | 50 pts | Professional Engineer Inspection | 40 pts | Project Type 2: Plans, Specifications, Engineering Studies, and Instrumentation | | Dam Break Inundation Zone Analysis, Mapping, and Digitization | 50 pts | Emergency Plan Development (EAP/EPP) | 50 pts | Spillway Capacity, Integrity, or Overtopping Analysis | 30 pts | Geotechnical Investigation and/or Structural Analysis for Dam/Spillway Stability | 35 pts | Engineering and Design | 25 pts | Final plans and specifications suitable for rehabilitation | 45 pts | Installation of remote monitoring system | 25 pts | Installation of remote monitoring system that transmits data to NWS | 30 pts |

[/TABLE]

• Page 29 ---

Project Type 3: Repairs, Safety Modifications and Removal (Construction)

Repair or Safety Modification Addresses Failure Modes (Static/Hydrologic/Seismic) 50 pts

Other Repairs or Safety Modifications 25 pts

Removal of Unsafe Dam - No New Dam Rebuilt 30 pts Total Points

(DCR-VSWCB-018) () 27

[TABLE 29-1] Project Type 3: Repairs, Safety Modifications and Removal (Construction) | | Repair or Safety Modification | | Addresses Failure Modes (Static/Hydrologic/Seismic) | 50 pts | Other Repairs or Safety Modifications | 25 pts | Removal of Unsafe Dam - No New Dam Rebuilt | 30 pts | Total Points | |

[/TABLE]

• Page 30 ---

Appendix C: Documentation Checklist for Dam Safety

Applications Virginia Department of Conservation and Recreation

Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Name of Applicant:

Scope of Work Narrative

Required Components Included

Need for Assistance Narrative □ Yes □ No □ N/A Operation and Maintenance Certificate □ Yes □ No □ N/A

Application Appendix A □ Yes □ No

Scope of Work Narrative Need for Assistance □ Yes □ No

Completed Scoring Criteria Sheet in Appendix B □ Yes □ No

Risk Reduction Benefits Expected □ Yes □ No Goals and Objectives □ Yes □ No

Approach, Milestones and Deliverables □ Yes □ No

Maintenance Plan □ Yes □ No □ N/A

Alternatives □ Yes □ No □ N/A Budget Narrative

Supporting Documentation Included

Locality Applicants: Resolution or other documentation authorizing the □ Yes □ No request for funding Non-locality Applicants: Signed pledge agreement(s) or other authorizing □ Yes □ No documentation from each contributing organization

Detailed budget and narrative of how funding is to be allocated □ Yes □ No

Proof / Evidence of ability to fund the total cost (100%) of the project prior □ Yes □ No to Reimbursement

(DCR-VSWCB-018) () 28

[TABLE 30-1] Scope of Work Narrative | Required Components | Included Need for Assistance Narrative | □ Yes □ No □ N/A Operation and Maintenance Certificate | □ Yes □ No □ N/A Application Appendix A | □ Yes □ No Scope of Work Narrative | Need for Assistance | □ Yes □ No Completed Scoring Criteria Sheet in Appendix B | □ Yes □ No Risk Reduction Benefits Expected | □ Yes □ No Goals and Objectives | □ Yes □ No Approach, Milestones and Deliverables | □ Yes □ No Maintenance Plan | □ Yes □ No □ N/A Alternatives | □ Yes □ No □ N/A Budget Narrative | Supporting Documentation | Included Locality Applicants: Resolution or other documentation authorizing the request for funding | □ Yes □ No Non-locality Applicants: Signed pledge agreement(s) or other authorizing documentation from each contributing organization | □ Yes □ No Detailed budget and narrative of how funding is to be allocated | □ Yes □ No Proof / Evidence of ability to fund the total cost (100%) of the project prior to Reimbursement | □ Yes □ No

[/TABLE]

• Page 31 ---

Appendix D: Extension Request Form Virginia Department of Conservation and Recreation

Dam Safety, Flood Prevention and Protection Assistance Fund Grant Program

Request to Amend Contract between Virginia Resources Authority and Grant Recipient of the 2025 Dam Safety, Flood Prevention and Protection Assistance Fund Grant

All projects must start and finish within 24 months after the signed agreement between the applicant and VRA for DCR.

DCR may grant a one-year extension if requested at least 120 days before expiration, via email to dam@dcr.virginia.gov or mail to:

Virginia Department of Conservation and Recreation

Attention: Dam Safety, Flood Prevention and Protection Assistance Fund Division of Dam Safety 600 East Main Street, 24th Floor Richmond, Virginia 23219

Grant Recipient:

Contact Name:

Mailing Address (1):

Mailing Address (2):

City: State: Zip:

Is this a new address? □ Yes □ No Has the Contact Name changed? □ Yes □ No

Telephone Number: ( _) Cell Phone Number: ( )

Email Address:

Grant Number:

Type of Project (Check one): □ Dam Safety □ Flood Prevention and Protection

(DCR-VSWCB-018) () 29

• Page 32 ---

Title of Project:

Dam Name:

Dam Inventory Number:

Total Cost of Project:

Total Amount Awarded:

Current Grant End Date:

Requested New End Date:

Provide a detailed reason for the extension, including why work won't be completed during the initial period and a timeline if approved. Attach additional documentation if needed.

Grant Recipient Signature Date Requested

Grant Recipient Printed Name Title

(DCR-VSWCB-018) () 30

[TABLE 32-1]

[/TABLE]

• Page 33 ---

DCR Use Only

Virginia DCR: Date Approved / Denied

Printed Name Title

VRA Use Only

Virginia Resources Authority Date Date Grant Received Modified

(DCR-VSWCB-018) () 31

[TABLE 33-1]

[/TABLE]

• Page 1 ---

VIRGINIA SOIL AND WATER

CONSERVATION BOARD

GUIDANCE DOCUMENT ON

THE DETERMINATION OF

INSURANCE LEVELS IN

ACCORDANCE WITH § 10.1-

605 OF THE CODE OF

VIRGINIA

(Approved September 7, 2016)

Summary:

This document serves to provide guidance to impounding structure owners regarding the establishment of appropriate insurance amounts to be carried by an owner that will substantially cover the costs of downstream property losses to others that may result from a dam failure. Such requirements are applicable to dam owners seeking reductions in spillway design capacity in accordance with the provisions of § 10.1-605 of the Code of Virginia. The document outlines procedures to be utilized to determine the flood zone that would require insurance coverage.

Electronic Copy: An electronic copy of this guidance in PDF format is available on the Regulatory Town Hall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Dam Safety and Floodplain Management at dam@dcr.virginia.gov or by calling 804-371-6095 with any questions regarding the application of this guidance.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for the Department of Conservation and Recreation in administering the Dam Safety Program on behalf of the Virginia Soil and Water Conservation Board. This guidance provides a general interpretation of the applicable Code and Regulations but is not meant to be exhaustive in nature.

Each situation may differ and may require additional interpretation of the Dam Safety Act and attendant regulations. This guidance is not intended and cannot be relied on to create any rights, substantive or procedural, on the part of any person or entity.

Determination of Adequate Insurance Levels by Dam Owners When Applicable

I. Background: Pursuant to Chapter 249 of the 2010 Virginia Acts of Assembly (SB276), § 10.1-506 of the Code of Virginia was amended to authorize an impounding structure to be determined to be in compliance with the spillway requirements of the impounding structure regulations provided that (i) the impounding structure will pass two-thirds of the reduced probable maximum precipitation

(DCR-VSWCB-040) (09/16) 1

• Page 2 ---

requirement (the 90 percent of the probable maximum precipitation) and (ii) the dam owner certifies annually that such impounding structure meets eight specified non-structural conditions including an updated emergency action plan, annual engineering inspections, and insurance for possible damage to downstream property.

In accordance with these conditions, for a dam owner to be found eligible for a reduced PMP requirement for spillway design, the owner shall, amongst several applicable conditions, certify that they are “insured in an amount that will substantially cover the costs of downstream property losses to others that may result from a dam failure”.

This guidance serves to clarify procedures that dam owners shall utilize to determine the flood zone that would require insurance coverage to comply with the provisions of § 10.1-506 of the Code of Virginia.

II. Definitions: "Acre-foot" means a unit of volume equal to 43,560 cubic feet or 325,853 gallons (equivalent to one foot of depth over one acre of area).

"Dam break inundation zone" means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

"Design flood" means the calculated volume of runoff and the resulting peak discharge utilized in the evaluation, design, construction, operation and maintenance of the impounding structure.

"Height" means the structural height of a dam which is defined as the vertical distance from the natural bed of the stream or watercourse measured at the downstream toe of the dam to the top of the dam.

"Impounding structure" means a man-made structure, whether a dam across a watercourse or

other structure outside a watercourse, used or to be used to retain or store waters or other materials. The term includes: (i) all dams that are twenty-five feet or greater in height and that create an impoundment capacity of fifteen acre-feet or greater, and (ii) all dams that are six feet or greater in height and that create an impoundment capacity of fifty acre-feet or greater. The term "impounding structure" shall not include: (a) dams licensed by the State Corporation Commission that are subject to a safety inspection program; (b) dams owned or licensed by the United States government; (c) dams operated primarily for agricultural purposes which are less than twenty-five feet in height or which create a maximum impoundment capacity smaller than 100 acre-feet; (d) water or silt retaining dams approved pursuant to § 45.1-222 or § 45.1-225.1; or (e) obstructions in a canal used to raise or lower water.

"Owner" means the owner of the land on which an impounding structure is situated, the holder of an easement permitting the construction of an impounding structure and any person or entity agreeing to maintain an impounding structure. The term "owner" may include the Commonwealth or any of its political subdivisions, including but not limited to sanitation district commissions and authorities, any public or private institutions, corporations, associations, firms

(DCR-VSWCB-040) (09/16) 2

• Page 3 ---

or companies organized or existing under the laws of this Commonwealth or any other state or country, as well as any person or group of persons acting individually or as a group.

"Spillway" means a structure to provide for the controlled release of flows from the impounding structure into a downstream area.

III. Authority: The Dam Safety Act (§ 10.1-604 et seq.) in the Code of Virginia contains the following authorities applicable to this guidance:

§ 10.1-605. Promulgation of regulations by the Board; guidance document.

B…1…g. The owner is insured in an amount that will substantially cover the costs of downstream property losses to others that may result from a dam failure; …

1. Any dam owner who has submitted the certifications required by subdivisions 1 a through 1 h shall make (i) such certifications, (ii) the emergency action plan required by subdivision 1 a, and (iii) the certificate of insurance required by subdivision 1 g available, upon request and within five business days, to any person. A dam owner may comply with the requirements of this subdivision by providing the same information on a website and directing the requestor to such website. A dam owner who fails to comply with this subdivision shall be subject to a civil penalty pursuant to § 10.1-613.2.

§ 10.1-606.2 Mapping of Dam Break Inundation Zones An owner of an impounding structure shall prepare a map of the dam break inundation zone for the impounding structure in accordance with criteria set out in the Virginia Impounding Structure Regulations (4VAC50-20)…

Appendix 1 contains the Code of Virginia authorities (extended) applicable to this Guidance and Appendix 2 contains the Impounding Structure Regulations authorities applicable to this Guidance. These include:

§ 10.1-605. Promulgation of regulations by the Board. 4VAC50-20-40. Hazard potential classifications of impounding structures. 4VAC50-20-50. Performance Standards Required for Impounding Structures 4VAC50-20-52. Incremental Damage Analysis. 4VAC50-20-53. Special Criteria for Reduced Sdf Requirement for Certain High Hazard Dams. 4VAC50-20-54. Dam break inundation zone mapping.

IV. Discussion and Interpretation:

The requirement for a dam owner to carry insurance to cover the costs of downstream property losses is not a requirement that applies to all dam owners regulated in accordance with the Dam Safety Act [Article 2 (§ 10.1-604 et seq.) of Title 10.1 of the Code of Virginia]. It only applies to a limited set of high hazard dam owners that seek to maintain a Spillway Design Flood (SDF) capacity less than the 0.90 PMP standard set out in Table 1 of 4VAC50-20-50 of the Impounding Structure Regulations, in accordance with allowances provided within the law (§ 10.1-605) and the attendant regulations (4VAC50-20-50 and 4VAC50-20-53).

(DCR-VSWCB-040) (09/16) 3

• Page 4 ---

In accordance with § 10.1-605 of the Code of Virginia, the requirement is limited to those owners of a high hazard dam that are required to upgrade the spillway of their impounding structure to 0.90 probable maximum precipitation (PMP) (or at some PMP level in excess of 0.60 PMP in accordance with incremental methodologies) and that by choice of the owner, seek to comply with the conditions set out there-in that allow the spillway requirement to be reduced to two-thirds of the PMP requirement (0.60 PMP).

For this limited set of dam owners seeking the benefits of this provision of law, amongst the list of conditions that the dam owner must annually meet and certify to, is the requirement that “[t]he owner is insured in an amount that will substantially cover the costs of downstream property losses to others that may result from a dam failure”.

As the greatest magnitude of benefit to the dam owner due to the provisions of § 10.1-605 of the Code of Virginia, is a reduction in capacity from a maximum of 0.90 PMP down to 0.60 PMP it is reasonable to determine that it is the commensurate increase in risk to downstream property generated by the difference between the impounding structures spillway requirement (0.90) with dam failure or their incremental spillway design with dam failure and 0.60 PMP with dam failure or their actual spillway design with dam failure if greater, that insurance must be held for. This constitutes the applicable “range” (See Area of Insurance Valuation).

It is also relevant to note that this is limited to those downstream property losses that would result from a dam failure. This should be determined based on a worst case scenario where there is a complete failure of the structure with a failure time of no more than 30 minutes.

Within this range, insurance must be of a level to “substantially” cover the costs of downstream property losses to others. The list of properties that must be considered would include, but not be limited to, losses associated with residences, businesses, roadways and streets, personal property, public utilities, industrial or commercial facilities, railroads, and agricultural interests,

not owned by the owner.

Any property or portion of a property that may sustain a loss, in accordance with the list outlined above, within the range shown on the dam break inundation zone map, must be insured. Dam failure impacts on traveling vehicles or other modes of active transport during flood conditions is considered likely to be minimal as the downstream population is “on alert.” Accordingly, impacts to modes of transport traveling these roadways or railways should be minimal and does not need to be included in insurance valuations. However, impacts to the roadways or railways within the range shown on the dam break inundation zone map must be insured.

An owner may further refine this list using methodologies set out in Section III of the United States Department of Interior, Bureau of Reclamation's ACER Technical Memorandum No. 11, 1988 at the owner’s discretion.

Dam break inundation zone maps generated in accordance with the provisions of 4VAC50-20-54 shall be used to identify those properties at risk of loss within this range (the area of insurance valuation). The area of insurance valuation (area 1) would represent the minimum area to

(DCR-VSWCB-040) (09/16) 4

• Page 5 ---

evaluated for insurance valuation purposed. At no time would the lower range need to consider a SDF less than 0.60 PMP with dam failure.

Area of Insurance Valuation (required dam break inundation zone analyses)

No Insurance Valuation required PMP with dam failure; in this area or “range” _______________________________________________________________________________________________________ SDF with dam failure (0.9 PMP with dam failure or lower SDF with dam failure allowed following

IDA);

Area or “range” of Insurance Valuation

1. 6 PMP with dam failure (or current SDF with dam failure if greater than 0.6 PMP); _______________________________________________________________________________________________________
2. 6 PMP No Insurance Valuation required Sunny Day in this area or “range” Once the properties outlined above in the area of insurance valuation are adequately identified and fully considered in accordance with this guidance, and the maps and supporting information has been approved by the Department’s Regional Engineer or other designated Department Dam Safety Staff, the dam owner, working with their insurance agent, shall acquire insurance in an amount that will substantially cover the costs of downstream property losses within the “range” and provide a certificate of insurance to the Department with a statement stipulating that “the insurance carried is believed to be sufficient to substantially cover the costs of downstream property losses to others resulting from a dam failure”.

V. Adoption, Amendments, and Repeal: This document will remain in effect until rescinded or superseded.

_______________________________ _______________________________ Daphne W. Jamison Clyde E. Cristman Board Chair Department Director

(DCR-VSWCB-040) (09/16) 5

[TABLE 5-1] No Insurance Valuation required in this area or “range”

[/TABLE]

[TABLE 5-2] SDF with dam failure (0.9 PMP with dam failure or lower SDF with dam failure allowed following

IDA);

[/TABLE]

[TABLE 5-3] Area or “range” of Insurance Valuation

[/TABLE]

[TABLE 5-4] No Insurance Valuation required in this area or “range”

[/TABLE]

• Page 6 ---

Appendix 1 Applicable Code of Virginia Authorities.

The Code of Virginia contains the following authorities applicable to this Guidance:

§ 10.1-605. Promulgation of regulations by the Board; guidance document.

A. The Board shall adopt regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated. Dam safety regulations promulgated by the State Water Control Board shall remain in full force until amended in accordance with applicable procedures.

B. The Board's Impounding Structure Regulations shall not require any impounding structure in existence or under a construction permit prior to July 1, 2010, that is currently classified as high hazard, or is subsequently found to be high hazard through reclassification, to upgrade its

spillway to pass a rainfall event greater than the maximum recorded within the Commonwealth, which shall be deemed to be 90 percent of the probable maximum precipitation.

1. Such an impounding structure shall be determined to be in compliance with the spillway requirements of the regulations provided that (i) the impounding structure will pass two-thirds of the reduced probable maximum precipitation requirement described in this subsection and (ii) the dam owner certifies annually and by January 15 that such impounding structure meets each of the following conditions: a. The owner has a current emergency action plan that is approved by the Board and that is developed and updated in accordance with the regulations; b. The owner has exercised the emergency action plan in accordance with the regulations and conducts a table-top exercise at least once every two years; c. The Department has verification that both the local organization for emergency management and the Virginia Department of Emergency Management have on file current emergency action plans and updates for the impounding structure; d. That conditions at the impounding structure are monitored on a daily basis and as dictated by the emergency action plan;

e. The impounding structure is inspected at least annually by a professional engineer and all observed deficiencies are addressed within 120 days of such inspection; f. The owner has a dam break inundation zone map developed in accordance with the regulations that is acceptable to the Department; g. The owner is insured in an amount that will substantially cover the costs of downstream property losses to others that may result from a dam failure; and h. The owner shall post the dam's emergency action plan on his website, or upon the request of the owner, the Department or another state agency responsible for providing emergency management services to citizens agrees to post the plan on its website. If the Department or another state agency agrees to post the plan on its website, the owner shall provide the plan in a format suitable for posting.

1. A dam owner who meets the conditions of subdivisions 1 a through 1 h, but has not provided record drawings to the Department for his impounding structure, shall submit a complete record report developed in accordance with the construction permit requirements of the Impounding Structure Regulations, excluding the required submittal of the record drawings.
2. A dam owner who fails to submit certifications required by subdivisions 1 a through 1 h in a timely fashion shall not enjoy the presumption that such impounding structure is deemed to be

(DCR-VSWCB-040) (09/16) 6

• Page 7 ---

in compliance with the spillway requirements of the Board's Impounding Structure Regulations

(4VAC50-20).

1. Any dam owner who has submitted the certifications required by subdivisions 1 a through 1 h shall make (i) such certifications, (ii) the emergency action plan required by subdivision 1 a, and (iii) the certificate of insurance required by subdivision 1 g available, upon request and within five business days, to any person. A dam owner may comply with the requirements of this subdivision by providing the same information on a website and directing the requestor to such website. A dam owner who fails to comply with this subdivision shall be subject to a civil penalty pursuant to § 10.1-613.2.

C. The Board's regulations shall establish an incremental damage analysis procedure that permits the spillway design flood requirement for an impounding structure to be reduced to the level at which dam failure shall not significantly increase downstream hazard to life or property, provided that the spillway design flood requirement shall not be reduced to below the 100-year

flood event for high or significant hazard impounding structures, or to below the 50-year flood event for low hazard potential impounding structures.

D. The Board shall consider the impact of limited-use or private roadways with low traffic volume and low public safety risk that are downstream from or across an impounding structure in the determination of the hazard potential classification of an impounding structure.

§ 10.1-606.2. Mapping of dam break inundation zones.

E. An owner of an impounding structure shall prepare a map of the dam break inundation zone for the impounding structure in accordance with criteria set out in the Virginia Impounding Structure Regulations (4VAC 50-20). Existing maps prepared by the locality in accordance with these regulations may be used for this purpose.

B. All maps prepared in accordance with subsection A shall be filed with the Department of Conservation and Recreation and with the offices with plat and plan approval authority or zoning responsibilities as designated by the locality for each locality in which the dam break inundation zone resides.

C. Owners of impounding structures may be eligible for matching grants of up to 50 percent

from the Dam Safety, Flood Prevention and Protection Assistance Fund and other sources of funding available to the Director to assist in the development of dam break inundation zone maps and for conducting incremental damage assessments in accordance with the Virginia Impounding Structure Regulations.

D. All properties identified within the dam break inundation zone shall be incorporated by the owner into the dam safety emergency action plan of that impounding structure so as to ensure the proper notification of persons downstream and other affected persons or property owners in the event of an emergency condition at the impounding structure.

(DCR-VSWCB-040) (09/16) 7

• Page 8 ---

Appendix 2 Applicable Impounding Structure Regulations Authorities.

The Impounding Structure Regulations contains the following authorities applicable to this Guidance.

4VAC50-20-40. Hazard Potential Classifications of Impounding Structures.

A. Impounding structures shall be classified in one of three hazard classifications as defined in subsection B of this section and Table 1.

B. For the purpose of this chapter, hazards pertain to potential loss of human life or damage to the property of others downstream from the impounding structure in event of failure or faulty operation of the impounding structure or appurtenant facilities. Hazard potential classifications of impounding structures are as follows:

1. High Hazard Potential is defined where an impounding structure failure will cause probable loss of life or serious economic damage. "Probable loss of life" means that impacts will occur that are likely to cause a loss of human life, including but not limited to impacts to residences, businesses, other occupied structures, or major roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, major roadways, railroads, personal property, and agricultural interests. "Major roadways" include, but are not limited to, interstates, primary highways, high-volume urban streets, or other high-volume roadways, except those having an AADT volume of 400 vehicles or less in accordance with 4VAC50-20-45.
2. Significant Hazard Potential is defined where an impounding structure failure may cause the loss of life or appreciable economic damage. "May cause loss of life" means that impacts will occur that could cause a loss of human life, including but not limited to impacts to facilities that are frequently utilized by humans other than residences, businesses, or other occupied structures, or to secondary roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, secondary roadways, railroads, personal property, and agricultural interests. "Secondary roadways" include, but are not limited

to, secondary highways, low-volume urban streets, service roads, or other low-volume roadways, except those having an AADT volume of 400 vehicles or less in accordance with 4VAC50-20-45.

1. Low Hazard Potential is defined where an impounding structure failure would result in no expected loss of life and would cause no more than minimal economic damage. "No expected loss of life" means no loss of human life is anticipated.

C. To support the appropriate hazard potential classification, dam break analysis shall be conducted by the owner's engineer or the department in accordance with one of the following alternatives and utilizing procedures set out in 4VAC50-20-54.

1. The owner of an impounding structure that does not currently hold a regular or conditional certificate from the board, or the owner of an impounding structure that is already under certificate but the owner believes that a condition has changed downstream of the impounding structure that may reduce its hazard potential classification, may request in writing that the department conduct a simplified dam break inundation zone analysis to determine whether the impounding structure has a low hazard potential classification. The owner shall pay a fee to the department in accordance with 4VAC50-20-395 for conducting each requested analysis. The

(DCR-VSWCB-040) (09/16) 8

• Page 9 ---

department shall address requests in the order received and shall strive to complete analysis within 90 days; or

1. The owner may propose a hazard potential classification that shall be subject to approval by the board. To support the proposed hazard potential classification, an analysis shall be conducted by the owner's engineer and submitted to the department. The hazard potential classification shall be certified by the owner.

D. Findings of the analysis conducted pursuant to subsection C of this section shall result in one of the following actions:

1. For findings by the department resulting from analyses conducted in accordance with subdivision C 1 of this section: a. If the department finds that the impounding structure appears to have a low hazard potential classification, the owner may be eligible for general permit coverage in accordance with 4VAC50-20-103.

b. If the department finds that the impounding structure appears to have a high or significant hazard potential classification, the owner's engineer shall provide further analysis in accordance with the procedures set out in 4VAC50-20-54 and this chapter. The owner may be eligible for grant assistance from the Dam Safety, Flood Prevention and Protection Assistance Fund in accordance with Article 1.2 (§ 10.1-603.16 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

1. For findings by the owner's engineer resulting from analyses conducted in accordance with subdivision C 2 of this section: a. If the engineer finds that the impounding structure has a low hazard potential classification, the owner may be eligible for general permit coverage in accordance with 4VAC50-20-103; or b. If the engineer finds that the impounding structure appears to have a high or significant hazard potential classification, then the owner shall comply with the applicable certification requirements set out in this chapter.

E. An incremental damage analysis in accordance with 4VAC50-20-52 may be utilized as part of a hazard potential classification by the owner's engineer.

F. Impounding structures shall be subject to reclassification by the board as necessary.

4VAC50-20-50. Performance Standards Required for Impounding Structures.

G. In accordance with the definitions provided by § 10.1-604 of the Code of Virginia and 4VAC50-20-30, an impounding structure shall be regulated if the impounding structure is 25 feet or greater in height and creates a maximum impounding capacity of 15 acre-feet or greater, or the impounding structure is six feet or greater in height and creates a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia. Impounding structures exempted from this chapter are those that are:

1. Licensed by the State Corporation Commission that are subject to a safety inspection program;
2. Owned or licensed by the United States government;
3. Operated primarily for agricultural purposes that are less than 25 feet in height or that create a maximum impoundment capacity smaller than 100 acre-feet;
4. Water or silt-retaining dams approved pursuant to § 45.1-222 or 45.1-225.1 of the Code of Virginia; or
5. Obstructions in a canal used to raise or lower water.

(DCR-VSWCB-040) (09/16) 9

• Page 10 ---

Impounding structures of regulated size and not exempted shall be constructed, operated and maintained such that they perform in accordance with their design and purpose throughout the life of the project. For impounding structures, the spillway capacity shall perform at a minimum to safely pass the appropriate spillway design flood as determined in Table 1. For the purposes of utilizing Table 1, Hazard Potential Classification shall be determined in accordance with

4VAC50-20-40.

TABLE 1 Impounding Structure Regulations Applicable to all impounding structures that are 25 feet or greater in height and that create a

maximum impounding capacity of 15 acre-feet or greater, and to all impounding structures that are six feet or greater in height and that create a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia.

Spillway Design Spillway Design Flood Minimum Threshold Hazard Potential Flood (SDF)B for (SDF)B for Existing for Incremental Class of Dam New ConstructionF Impounding StructuresF, G Damage Analysis High PMFC 0.9 PMPH 100-YRD Significant .50 PMF .50 PMF 100-YRD Low 100-YRD 100-YRD 50-YRE B. The spillway design flood (SDF) represents the largest flood that need be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Reductions in the established SDF may be evaluated through the use of incremental damage analysis pursuant to 4VAC50-20-52. The SDF established for an impounding structure shall not be less than those standards established elsewhere by state law or regulations, including but not limited to the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870). Due to potential for future development in the dam break inundation zone that would necessitate higher spillway design flood standards or other considerations, owners may find it advisable to consider a higher spillway design flood standard than is required.

C. PMF: Probable Maximum Flood is the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF shall be calculated from the probable maximum precipitation (PMP) derived from the Probable Maximum Precipitation Study for Virginia (and associated PMP Evaluation Tool and Database) (November 2015). The owner's engineer must develop PMF hydrographs for 6-, 12-, and 24-hour durations. The hydrograph that creates the largest peak outflow is to be used to determine capacity for nonfailure and failure analysis. Present and

planned land-use conditions shall be considered in determining the runoff characteristics of the drainage area.

D. 100-Yr: 100-year flood represents the flood magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as an exceedance probability with a 1.0% chance of being equaled or exceeded in any given year. Present and planned land-use conditions shall be considered in determining the runoff characteristics of the drainage area.

E. 50-Yr: 50-year flood represents the flood magnitude expected to be equaled or exceeded on the average of once in 50 years. It may also be expressed as an exceedance probability with a

(DCR-VSWCB-040) (09/16) 10

[TABLE 10-1] TABLE 1 Impounding Structure Regulations | | | Applicable to all impounding structures that are 25 feet or greater in height and that create a maximum impounding capacity of 15 acre-feet or greater, and to all impounding structures that are six feet or greater in height and that create a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia. | | | Hazard Potential Class of Dam | Spillway Design Flood (SDF)B for New ConstructionF | Spillway Design Flood (SDF)B for Existing Impounding StructuresF, G | Minimum Threshold for Incremental Damage Analysis High | PMFC | 0.9 PMPH | 100-YRD Significant | .50 PMF | .50 PMF | 100-YRD Low | 100-YRD | 100-YRD | 50-YRE

[/TABLE]

• Page 11 ---

1. 0% chance of being equaled or exceeded in any given year. Present and planned land-use conditions shall be considered in determining the runoff characteristics of the drainage area.

F. For the purposes of Table 1 "Existing impounding structure" and "New construction" are defined in 4VAC50-20-30.

G. An existing impounding structure as defined in 4VAC50-20-30, that is currently classified as high hazard, or is subsequently found to be high hazard through reclassification, shall only be required to pass the flood resulting from 0.6 PMP instead of the flood resulting from the 0.9 PMP SDF if the dam owner meets the requirements set out in 4VAC50-20-53.

H. PMP: Probable maximum precipitation means the theoretically greatest depth of precipitation for a given duration that is meteorologically possible over a given size storm area at a particular geographical location at a particular time of year with no allowance made for future long-term climatic trends. In practice, this is derived by storm transposition and moisture adjustment to observed storm patterns. In Virginia, the 0.9 PMP is meant to characterize the

maximum recorded rainfall event within the Commonwealth.

4VAC50-20-52. Incremental Damage Analysis.

I. The proposed potential hazard classification for an impounding structure may be lowered based on the results of an incremental damage analysis utilizing one of the following methodologies:

1. Section III of the United States Department of Interior, Bureau of Reclamation's ACER Technical Memorandum No. 11, 1988. An impact shall be deemed to occur where there are one or more lives in jeopardy as a result of a dam failure; or
2. An approach to determining hazard classification found in any document that is on the list of acceptable references set out in 4VAC50-20-320. The owner's engineer shall reference the methodology utilized in the submittal to the department.

B. The proposed spillway design flood for the impounding structure may be lowered based on the results of an incremental damage analysis. Once the owner's engineer has determined the required spillway design flood through application of Table 1, further analysis may be performed to evaluate the limiting flood condition for incremental damages. Site-specific conditions should

be recognized and considered. In no situation shall the allowable reduced level be less than the level at which the incremental increase in water surface elevation downstream due to failure of an impounding structure is no longer considered to present an additional downstream threat.

This engineering analysis will need to present water surface elevations at each structure that may be impacted downstream of the dam. An additional downstream threat to persons or property is presumed to exist when water depths exceed two feet or when the product of water depth (in feet) and flow velocity (in feet per second) is greater than seven.

The spillway design flood shall also not be reduced below the minimum threshold values as determined by Table 1.

C. The proposed potential hazard classification for the impounding structure and the required spillway design flood shall be subject to reclassification by the board as necessary to reflect the incremental damage assessment, changed conditions at the impounding structure, and changed conditions in the dam break inundation zone.

(DCR-VSWCB-040) (09/16) 11

• Page 12 ---

4VAC50-20-53. Special Criteria for Reduced Sdf Requirement for Certain High Hazard Dams.

A. An existing impounding structure that is currently classified as high hazard, or is subsequently found to be high hazard through reclassification, shall be allowed to pass the flood resulting from 0.6 PMP instead of the flood resulting from 0.9 PMP SDF if the dam owner certifies annually that such impounding structure meets each of the following conditions:

1. The owner has a current emergency action plan that is approved by the board and that is developed and updated in accordance with 4VAC50-20-175;
2. The owner has exercised the emergency action plan in accordance with 4VAC50-20-175 and conducts a table-top exercise at least once every two years;
3. The department has verification that both the local organization for emergency management and the Virginia Department of Emergency Management have on file current emergency action plans and updates for the impounding structure;

1. The conditions at the impounding structure are monitored on a daily basis and as dictated by the emergency action plan;
2. The impounding structure is inspected at least annually by a professional engineer and all observed deficiencies are addressed within 120 days of such inspection. Such inspection reports shall be completed in accordance with 4VAC50-20-105 E and be submitted to the department with the owner's certification;
3. The owner has a dam break inundation zone map developed in accordance with the regulations that is acceptable to the department;
4. The owner is insured in an amount that will substantially cover the costs of downstream property losses to others that may result from a dam failure; and
5. The owner has the impounding structure's emergency action plan posted on his website, or upon the request of the owner, the department or another state agency responsible for providing emergency management services to citizens agrees to post the plan on its website. If the department or another state agency agrees to post the plan on its website, the owner shall provide the plan in a format suitable for posting.

A dam owner who meets the conditions of subdivisions 1 through 8 of this subsection, but

has not provided record drawings to the department for his impounding structure, shall submit a complete record report developed in accordance with 4VAC50-20-70 J, excluding the required submittal of the record drawings.

B. The dam owner must retain documents for a six-year period that supports the certification of the elements set out in subsection A.

4VAC50-20-54. Dam Break Inundation Zone Mapping.

C. Dam break inundation zone maps and analyses shall be provided to the department, except as provided for in 4VAC50-20-51, to meet the requirements set out in 4VAC50-20-40, 4VAC50-20-175, and 4VAC50-20-177, as applicable. In accordance with subsection G of this section, a simplified dam break inundation zone map and analysis may be completed by the department and shall be provided to the impounding structure's owner to assist such owner in complying with the requirements of this chapter. All analyses shall be completed in accordance with

4VAC50-20-20 D.

B. The location of the end of the inundation mapping should be indicated where the water surface elevation of the dam break inundation zone and the water surface elevation of the spillway design flood during an impounding structure nonfailure event converge to within one

(DCR-VSWCB-040) (09/16) 12

• Page 13 ---

foot of each other. The inundation maps shall be supplemented with water surface profiles showing the peak water surface elevation prior to failure and the peak water surface elevation after failure.

C. All inundation zone map(s) shall be signed and sealed by a licensed professional engineer.

D. Present and planned land-use for which a development plan has been officially approved by the locality in the dam break inundation zones downstream from the impounding structure shall be considered in determining the classification.

E. For determining the hazard potential classification, an analysis including, but not limited to, those hazards created by flood and nonflood dam failures shall be considered. At a minimum, the following shall be provided to the department:

1. A sunny day dam break analysis utilizing the volume retained at the normal or typical water surface elevation of the impounding structure;
2. A dam break analysis utilizing the spillway design flood with a dam failure;

1. An analysis utilizing the spillway design flood without a dam failure; and
2. A dam break analysis utilizing the probable maximum flood with a dam failure.

F. To meet the Emergency Action Plan requirements set out in 4VAC50-20-175 and the Emergency Preparedness Plan requirements set out in 4VAC50-20-177, all owners of impounding structures shall provide dam break inundation zone map(s) representing the impacts that would occur with both a sunny day dam failure and a probable maximum flood with a dam failure.

1. The map(s) shall be developed at a scale sufficient to graphically display downstream inhabited areas and structures, roads, public utilities that may be affected, and other pertinent structures within the identified inundation area. In coordination with the local organization for emergency management, a list of downstream inundation zone property owners and occupants, including telephone numbers may be plotted on the map or may be provided with the map for reference during an emergency.
2. Each map shall include the following statement: "The information contained in this map is prepared for use in notification of downstream property owners by emergency management personnel."

Should the department prepare a dam break inundation zone map and analysis in response to a request received pursuant to 4VAC50-20-40 C, the owner shall utilize this map to prepare a plan in accordance with this subsection.

G. Upon receipt of a written request in accordance with 4VAC50-20-40 C and receipt of a payment in accordance with 4VAC50-20-395, the department shall conduct a simplified dam break inundation zone analysis. In conducting the analysis, a model acceptable to the department shall be utilized. The analysis shall result in maps produced as Geographic Information System shape files for viewing and analyzing and shall meet the other analysis criteria of this section.

Upon completion of the analysis, the department shall issue a letter to the owner communicating the results of the analysis including the dam break inundation zone map, stipulating the department's finding regarding hazard potential classification based on the information available to the department, and explaining what the owner needs to do procedurally with this information to be compliant with the requirements of the Dam Safety Act (§ 10.1-604 et seq.) and this chapter.

(DCR-VSWCB-040) (09/16) 13

• Page 1 ---

VIRGINIA SOIL AND WATER

CONSERVATION BOARD

GUIDANCE DOCUMENT ON

THE DETERMINATION OF

INSURANCE LEVELS IN

ACCORDANCE WITH § 10.1-

605 OF THE CODE OF

VIRGINIA

(Approved September 7, 2016)

Summary:

This guidance informs impoundment owners on establishing insurance amounts to cover downstream property losses from dam failure. It applies to owners seeking spillway capacity reductions per § 10.1-605 and outlines flood zone determination procedures.

An electronic PDF of this guidance is available on the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact the Department of Conservation and Recreation’s Division of Dam Safety and Floodplain Management at dam@dcr.virginia.gov or 804-371-6095 for questions about this guidance.

This guidance offers standard procedures for the Department of Conservation and Recreation’s Dam Safety Program on behalf of the Virginia Soil and Water Conservation Board, providing a general, not exhaustive, interpretation of applicable laws.

Situations vary and may need further interpretation of the Dam Safety Act and regulations. This guidance does not create rights or procedural entitlements.

Determining Adequate Insurance Levels for Dam Owners

I. Background: Pursuant to 2010 Virginia Acts (SB276), § 10.1-506 was amended to allow impounding structures to meet spillway requirements if (i) they pass two-thirds of the reduced probable maximum precipitation

(DCR-VSWCB-040) (09/16) 1

• Page 2 ---

and (ii) the owner certifies annually that the structure meets eight non-structural conditions, including an updated emergency plan, annual inspections, and downstream property insurance.

To qualify for reduced PMP spillway design, owners must certify they are insured to substantially cover downstream property losses from dam failure.

This guidance clarifies procedures for dam owners to determine flood zones requiring insurance under § 10.1-506.

II. Definitions: "Acre-foot" is 43,560 cu ft or 325,853 gallons, equal to one foot over one acre.

"Dam break inundation zone" is the downstream area affected by dam failure.

"Design flood" is the runoff volume and peak discharge used in evaluating and designing the impounding structure.

"Height" is the vertical distance from the stream bed at the downstream toe to the dam top.

"Impounding structure" means a man-made structure, whether a dam across a watercourse or

other structure outside a watercourse, used or to be used to retain or store waters or other materials. The term includes: (i) all dams that are twenty-five feet or greater in height and that create an impoundment capacity of fifteen acre-feet or greater, and (ii) all dams that are six feet or greater in height and that create an impoundment capacity of fifty acre-feet or greater. The term "impounding structure" shall not include: (a) dams licensed by the State Corporation Commission that are subject to a safety inspection program; (b) dams owned or licensed by the United States government; (c) dams operated primarily for agricultural purposes which are less than twenty-five feet in height or which create a maximum impoundment capacity smaller than 100 acre-feet; (d) water or silt retaining dams approved pursuant to § 45.1-222 or § 45.1-225.1; or (e) obstructions in a canal used to raise or lower water.

"Owner" means the owner of the land on which an impounding structure is situated, the holder of an easement permitting the construction of an impounding structure and any person or entity agreeing to maintain an impounding structure. The term "owner" may include the Commonwealth or any of its political subdivisions, including but not limited to sanitation district commissions and authorities, any public or private institutions, corporations, associations, firms

(DCR-VSWCB-040) (09/16) 2

• Page 3 ---

or companies organized or existing under the laws of this Commonwealth or any other state or country, as well as any person or group of persons acting individually or as a group.

"Spillway" is a structure for controlled flow release from the impounding structure downstream.

III. Authority: The Dam Safety Act (§ 10.1-604 et seq.) grants authorities relevant to this guidance.

§ 10.1-605. authorizes regulation promulgation and guidance.

B…1…g. The owner must be insured to substantially cover downstream property losses from dam failure; …

1. Any dam owner who has submitted the certifications required by subdivisions 1 a through 1 h shall make (i) such certifications, (ii) the emergency action plan required by subdivision 1 a, and (iii) the certificate of insurance required by subdivision 1 g available, upon request and within five business days, to any person. A dam owner may comply with the requirements of this subdivision by providing the same information on a website and directing the requestor to such website. A dam owner who fails to comply with this subdivision shall be subject to a civil penalty pursuant to § 10.1-613.2.

§ 10.1-606.2 requires owners to prepare dam break inundation zone maps per 4VAC50-20.

Appendices 1 and 2 list Virginia authorities and Impounding Structure Regulations authorities applicable to this Guidance.

§ 10.1-605 and 4VAC50-20-40 to 4VAC50-20-54 cover regulations, hazard classifications, performance standards, damage analysis, reduced SDF criteria, and inundation zone mapping.

IV. Discussion and Interpretation:

Insurance is required only for high hazard dam owners seeking to reduce spillway capacity below 0.90 PMP per 4VAC50-20-50, not all dam owners under the Dam Safety Act.

(DCR-VSWCB-040) (09/16) 3

• Page 4 ---

Per § 10.1-605, only high hazard dam owners upgrading spillways to 0.90 PMP (or >0.60 PMP) and choosing to reduce to 0.60 PMP are subject to this insurance requirement.

Owners seeking benefits must annually certify they are insured to substantially cover downstream property losses from dam failure.

Reducing spillway capacity from 0.90 to 0.60 PMP increases downstream risk; thus, insurance must cover the risk difference, defining the insurance range (see Area of Insurance Valuation).

This is limited to downstream property losses from dam failure, determined by a worst-case scenario with complete failure within 30 minutes.

Insurance must substantially cover downstream property losses, including residences, businesses, roads, personal property, utilities, industrial facilities, railroads, and agriculture.

not owned by the owner.

Any property or portion of a property that may sustain a loss, in accordance with the list outlined above, within the range shown on the dam break inundation zone map, must be insured. Dam failure impacts on traveling vehicles or other modes of active transport during flood conditions is considered likely to be minimal as the downstream population is “on alert.” Accordingly, impacts to modes of transport traveling these roadways or railways should be minimal and does not need to be included in insurance valuations. However, impacts to the roadways or railways within the range shown on the dam break inundation zone map must be insured.

An owner may refine this list using methodologies in Section III of US Department of Interior, Bureau of Reclamation's ACER Technical Memorandum No. 11, 1988.

Dam break inundation zone maps per 4VAC50-20-54 shall identify properties at risk within this range (insurance valuation area), representing the minimum area to

(DCR-VSWCB-040) (09/16) 4

• Page 5 ---

evaluated for insurance purposes. The lower range need not consider SDF less than 0.60 PMP with dam failure.

Area of Insurance Valuation (required dam break inundation zone analyses)

No Insurance Valuation required PMP with dam failure; in this area or range _______________________________________________________________________________________________________ SDF with dam failure (0.9 PMP or lower SDF allowed following

IDA);

Area or “range” of Insurance Valuation

1. 6 PMP with dam failure (or current SDF with dam failure if greater than 0.6 PMP); _______________________________________________________________________________________________________
2. 6 PMP No Insurance Valuation required Sunny Day in this area or “range” Once the properties outlined above in the area of insurance valuation are adequately identified and fully considered in accordance with this guidance, and the maps and supporting information has been approved by the Department’s Regional Engineer or other designated Department Dam Safety Staff, the dam owner, working with their insurance agent, shall acquire insurance in an amount that will substantially cover the costs of downstream property losses within the “range” and provide a certificate of insurance to the Department with a statement stipulating that “the insurance carried is believed to be sufficient to substantially cover the costs of downstream property losses to others resulting from a dam failure”.

V. Adoption, Amendments, and Repeal: This document will remain in effect until rescinded or superseded.

_______________________________ _______________________________ Daphne W. Jamison Clyde E. Cristman Board Chair Department Director

(DCR-VSWCB-040) (09/16) 5

[TABLE 5-1] No Insurance Valuation required in this area or “range”

[/TABLE]

[TABLE 5-2] SDF with dam failure (0.9 PMP or lower SDF allowed following

IDA);

[/TABLE]

[TABLE 5-3] Area or “range” of Insurance Valuation

[/TABLE]

[TABLE 5-4] No Insurance Valuation required in this area or “range”

[/TABLE]

• Page 6 ---

Appendix 1 Applicable Code of Virginia Authorities.

The Code of Virginia contains the following authorities applicable to this Guidance:

§ 10.1-605. Promulgation of regulations by the Board; guidance document.

A. The Board shall adopt regulations to ensure impounding structures in the Commonwealth are properly constructed, maintained, and operated. Dam safety regulations by the State Water Control Board remain in full force until amended.

B. The Board's Impounding Structure Regulations shall not require structures existing or permitted before July 1, 2010, classified as high hazard or reclassified as such, to upgrade its

spillway to pass a rainfall event exceeding the maximum recorded in the Commonwealth, deemed 90% of the probable maximum precipitation.

1. Such an impounding structure shall be determined to be in compliance with the spillway requirements of the regulations provided that (i) the impounding structure will pass two-thirds of the reduced probable maximum precipitation requirement described in this subsection and (ii) the dam owner certifies annually and by January 15 that such impounding structure meets each of the following conditions: a. The owner has a current emergency action plan that is approved by the Board and that is developed and updated in accordance with the regulations; b. The owner has exercised the emergency action plan in accordance with the regulations and conducts a table-top exercise at least once every two years; c. The Department has verification that both the local organization for emergency management and the Virginia Department of Emergency Management have on file current emergency action plans and updates for the impounding structure; d. That conditions at the impounding structure are monitored on a daily basis and as dictated by the emergency action plan;

e. The structure is inspected annually by a professional engineer, deficiencies addressed within 120 days; f. The owner has an approved dam break inundation map; g. The owner is insured to cover downstream property losses; h. The owner posts the emergency action plan online or the Department/agency agrees to post it, with the owner providing a suitable format.

1. A dam owner meeting subdivisions 1 a through 1 h but not providing record drawings shall submit a complete record report per construction permit requirements, excluding record drawings.
2. A dam owner failing to submit certifications required by subdivisions 1 a through 1 h timely shall not enjoy the presumption that such impounding structure is deemed to be

(DCR-VSWCB-040) (09/16) 6

• Page 7 ---

in compliance with the Board's Impounding Structure Regulations spillway requirements

(4VAC50-20).

1. Any dam owner who has submitted the certifications required by subdivisions 1 a through 1 h shall make (i) such certifications, (ii) the emergency action plan required by subdivision 1 a, and (iii) the certificate of insurance required by subdivision 1 g available, upon request and within five business days, to any person. A dam owner may comply with the requirements of this subdivision by providing the same information on a website and directing the requestor to such website. A dam owner who fails to comply with this subdivision shall be subject to a civil penalty pursuant to § 10.1-613.2.

C. The regulations shall establish an incremental damage analysis allowing spillway design flood requirements to be reduced to levels where dam failure does not significantly increase downstream hazard, but not below the 100-year

flood event for high or significant hazard structures, or below the 50-year flood for low hazard structures.

D. The Board shall consider low-traffic, limited-use, or private roads downstream or across an impounding structure when determining hazard classification.

§ 10.1-606.2. Mapping of dam break inundation zones.

E. The owner shall prepare a dam break inundation zone map per Virginia Impounding Structure Regulations (4VAC 50-20), using existing local maps if available.

B. All maps shall be filed with the Department of Conservation and Recreation and local authorities responsible for plat, plan approval, or zoning.

C. Owners may be eligible for matching grants up to 50%

from the Dam Safety, Flood Prevention, and Protection Assistance Fund and other sources to develop dam break maps and conduct damage assessments per Virginia Impounding Structure Regulations.

D. All properties within the dam break inundation zone shall be incorporated by the owner into the dam safety emergency action plan to ensure proper downstream notification during an emergency.

(DCR-VSWCB-040) (09/16) 7

• Page 8 ---

Appendix 2 Applicable Impounding Structure Regulations Authorities.

The Impounding Structure Regulations contain authorities applicable to this Guidance.

4VAC50-20-40. Hazard Potential Classifications of Impounding Structures.

A. Impounding structures shall be classified into one of three hazard classifications as defined in subsection B and Table 1.

B. For this chapter, hazards relate to potential loss of life or property damage downstream from failure or faulty operation of the impounding structure or appurtenant facilities. Hazard classifications are as follows:

1. High Hazard Potential is where failure causes probable loss of life or serious economic damage. "Probable loss of life" includes impacts likely to cause human fatalities, such as residences, businesses, occupied structures, or major roadways. Economic damage may affect buildings, industrial or commercial facilities, utilities, major roads, railroads, personal property, and agricultural interests. "Major roadways" include interstates, primary highways, high-volume urban streets, or other high-volume roads, excluding those with AADT ≤400 in 4VAC50-20-45.
2. Significant Hazard Potential is defined where an impounding structure failure may cause the loss of life or appreciable economic damage. "May cause loss of life" means that impacts will occur that could cause a loss of human life, including but not limited to impacts to facilities that are frequently utilized by humans other than residences, businesses, or other occupied structures, or to secondary roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, secondary roadways, railroads, personal property, and agricultural interests. "Secondary roadways" include, but are not limited

to secondary highways, low-volume urban streets, service roads, or other low-volume roads, except those with AADT of 400 or less per 4VAC50-20-45.

1. Low Hazard Potential is where failure results in no expected loss of life and minimal economic damage. "No expected loss of life" means no human fatalities anticipated.

C. To support the appropriate hazard potential classification, dam break analysis shall be conducted by the owner's engineer or the department in accordance with one of the following alternatives and utilizing procedures set out in 4VAC50-20-54.

1. The owner of an impounding structure without a current certificate or believing downstream conditions have changed to reduce hazard potential may request in writing a simplified dam break inundation zone analysis. The owner shall pay a fee per 4VAC50-20-395 for each analysis.

(DCR-VSWCB-040) (09/16) 8

• Page 9 ---

department shall address requests in order and strive to complete analysis within 90 days; or

1. The owner may propose a hazard potential classification that shall be subject to approval by the board. To support the proposed hazard potential classification, an analysis shall be conducted by the owner's engineer and submitted to the department. The hazard potential classification shall be certified by the owner.

D. Findings from analysis under subsection C shall result in one of the following actions:

1. If the department finds, per subdivision C 1, that the structure appears to have a low hazard potential, the owner may qualify for general permit coverage under 4VAC50-20-103.

b. If the department finds that the impounding structure appears to have a high or significant hazard potential classification, the owner's engineer shall provide further analysis in accordance with the procedures set out in 4VAC50-20-54 and this chapter. The owner may be eligible for grant assistance from the Dam Safety, Flood Prevention and Protection Assistance Fund in accordance with Article 1.2 (§ 10.1-603.16 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

1. For findings by the owner's engineer resulting from analyses conducted in accordance with subdivision C 2 of this section: a. If the engineer finds that the impounding structure has a low hazard potential classification, the owner may be eligible for general permit coverage in accordance with 4VAC50-20-103; or b. If the engineer finds that the impounding structure appears to have a high or significant hazard potential classification, then the owner shall comply with the applicable certification requirements set out in this chapter.

E. An incremental damage analysis in accordance with 4VAC50-20-52 may be utilized as part of a hazard potential classification by the owner's engineer.

F. Impounding structures shall be reclassified by the board as necessary.

4VAC50-20-50. Performance Standards Required for Impounding Structures.

G. Under § 10.1-604 and 4VAC50-20-30, structures are regulated if ≥25 ft in height with ≥15 acre-feet capacity or ≥6 ft with ≥50 acre-feet capacity, unless exempt. Exempt structures are:

1. Licensed by the State Corporation Commission and subject to safety inspections;
2. Owned or licensed by the United States government;
3. Operated mainly for agriculture, less than 25 feet high or with capacity under 100 acre-feet;
4. Water or silt-retaining dams approved under § 45.1-222 or 45.1-225.1 of Virginia Code; or
5. Obstructions in water-raising or lowering canal.

(DCR-VSWCB-040) (09/16) 9

• Page 10 ---

Regulated, non-exempt impounding structures shall be constructed, operated, and maintained to perform as designed. Spillway capacity must safely pass the designated spillway design flood per Table 1, with hazard classification determined accordingly.

4VAC50-20-40.

TABLE 1 Impounding Structure Regulations Applicable to all impounding structures that are 25 feet or greater in height and that create a

applies to structures ≥25 ft with ≥15 acre-feet or ≥6 ft with ≥50 acre-feet capacity, unless exempt.

Spillway Design Spillway Design Flood Minimum Threshold Hazard Potential Flood (SDF)B for (SDF)B for Existing for Incremental Class of Dam New ConstructionF Impounding StructuresF, G Damage Analysis High PMFC 0.9 PMPH 100-YRD Significant .50 PMF .50 PMF 100-YRD Low 100-YRD 100-YRD 50-YRE B. The spillway design flood (SDF) represents the largest flood that need be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Reductions in the established SDF may be evaluated through the use of incremental damage analysis pursuant to 4VAC50-20-52. The SDF established for an impounding structure shall not be less than those standards established elsewhere by state law or regulations, including but not limited to the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870). Due to potential for future development in the dam break inundation zone that would necessitate higher spillway design flood standards or other considerations, owners may find it advisable to consider a higher spillway design flood standard than is required.

C. PMF: Probable Maximum Flood is the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF shall be calculated from the probable maximum precipitation (PMP) derived from the Probable Maximum Precipitation Study for Virginia (and associated PMP Evaluation Tool and Database) (November 2015). The owner's engineer must develop PMF hydrographs for 6-, 12-, and 24-hour durations. The hydrograph that creates the largest peak outflow is to be used to determine capacity for nonfailure and failure analysis. Present and

Planned land use shall be considered in runoff characterization.

D. 100-Yr: 100-year flood represents the flood magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as an exceedance probability with a 1.A 0% annual exceedance probability, considering current and planned land use, determines runoff characteristics of the drainage area.

E. The 50-year flood is expected once in 50 years, with a corresponding exceedance probability.

(DCR-VSWCB-040) (09/16) 10

[TABLE 10-1] TABLE 1 Impounding Structure Regulations | | | Applicable to all impounding structures that are 25 feet or greater in height and that create a maximum impounding capacity of 15 acre-feet or greater, and to all impounding structures that are six feet or greater in height and that create a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia. | | | Hazard Potential Class of Dam | Spillway Design Flood (SDF)B for New ConstructionF | Spillway Design Flood (SDF)B for Existing Impounding StructuresF, G | Minimum Threshold for Incremental Damage Analysis High | PMFC | 0.9 PMPH | 100-YRD Significant | .50 PMF | .50 PMF | 100-YRD Low | 100-YRD | 100-YRD | 50-YRE

[/TABLE]

• Page 11 ---

1. A 0% annual exceedance probability, considering current and planned land use, determines runoff characteristics of the drainage area.

F. For the purposes of Table 1 "Existing impounding structure" and "New construction" are defined in 4VAC50-20-30.

G. An existing high-hazard structure, or one reclassified as high hazard, must pass the flood from 0.6 PMP instead of 0.9 PMP SDF if the owner meets 4VAC50-20-53 requirements.

H. PMP (Probable Maximum Precipitation) is the greatest possible rainfall depth for a given duration and location, derived by storm transposition and moisture adjustment. In Virginia, 0.9 PMP characterizes the

maximum recorded rainfall in Virginia.

4VAC50-20-52. Incremental Damage Analysis.

I. The hazard classification may be lowered based on incremental damage analysis using specified methodologies.

1. Section III of the United States Department of Interior, Bureau of Reclamation's ACER Technical Memorandum No. 11, 1988. An impact shall be deemed to occur where there are one or more lives in jeopardy as a result of a dam failure; or
2. An approach to determining hazard classification found in any document that is on the list of acceptable references set out in 4VAC50-20-320. The owner's engineer shall reference the methodology utilized in the submittal to the department.

B. The proposed spillway design flood may be lowered based on incremental damage analysis. After the owner's engineer determines the flood via Table 1, further analysis may evaluate the limiting flood condition for damages. Site-specific conditions should

be recognized and considered. The allowable reduced level shall not be less than the level where downstream water surface increase from failure no longer poses an additional threat.

This analysis must present water surface elevations downstream. A threat exists if water depth exceeds two feet or if water depth times flow velocity exceeds seven.

The spillway design flood shall not be reduced below Table 1 minimum thresholds.

C. The hazard classification and spillway design flood may be reclassified by the board to reflect damage assessment, changed conditions at the structure, and in the dam break zone.

(DCR-VSWCB-040) (09/16) 11

• Page 12 ---

4VAC50-20-53. Special Criteria for Reduced Sdf Requirement for Certain High Hazard Dams.

A. A high hazard impounding structure, or one reclassified as such, may pass the 0.6 PMP flood instead of 0.9 PMP SDF if the owner annually certifies it meets all conditions:

1. The owner has an approved, current emergency action plan developed and updated per 4VAC50-20-175;
2. The owner exercises the plan per 4VAC50-20-175 and conducts a tabletop exercise at least biennially;
3. The department verifies that local emergency management and Virginia DEM have current, updated emergency action plans on file for the structure;

1. Conditions at the structure are monitored daily and as specified in the emergency action plan;
2. The impounding structure is inspected at least annually by a professional engineer and all observed deficiencies are addressed within 120 days of such inspection. Such inspection reports shall be completed in accordance with 4VAC50-20-105 E and be submitted to the department with the owner's certification;
3. The owner has an approved dam break inundation zone map per regulations acceptable to the department;
4. The owner maintains insurance sufficient to substantially cover downstream property losses from dam failure; and
5. The owner has the impounding structure's emergency action plan posted on his website, or upon request, the department or another state agency responsible for emergency management agrees to post it. If posted, the owner shall provide the plan in a suitable format.

A dam owner meeting conditions 1-8 of this subsection, but

If record drawings are not provided, the owner shall submit a complete record report per 4VAC50-20-70 J, excluding drawings.

B. The owner must retain supporting documents for six years for certification in subsection A.

4VAC50-20-54. Dam Break Inundation Zone Mapping.

C. Dam break inundation zone maps and analyses shall be provided to the department, except as in 4VAC50-20-51, to meet requirements in 4VAC50-20-40, 4VAC50-20-175, and 4VAC50-20-177. A simplified map and analysis may be done by the department and provided to owners to aid compliance. All analyses shall follow

4VAC50-20-20 D.

B. The inundation map's end point should be where the dam break zone and spillway design flood water surfaces converge within one

(DCR-VSWCB-040) (09/16) 12

• Page 13 ---

foot of each other. Maps shall include water surface profiles showing peak elevations before and after failure.

C. All inundation maps must be signed and sealed by a licensed PE.

D. Present and planned land use with approved development plans in downstream inundation zones shall be considered in classification.

E. Hazard classification analysis shall include flood and nonflood failure hazards. At minimum, the following shall be provided to the department:

1. A sunny day dam break analysis utilizing the volume retained at the normal or typical water surface elevation of the impounding structure;
2. A dam break analysis utilizing the spillway design flood with a dam failure;

1. An analysis utilizing the spillway design flood without a dam failure; and
2. A dam break analysis utilizing the probable maximum flood with a dam failure.

F. To meet EAP in 4VAC50-20-175 and preparedness in 4VAC50-20-177, owners shall provide dam break inundation maps for both sunny day failure and probable maximum flood scenarios.

1. The map(s) shall be developed at a scale to display downstream inhabited areas, structures, roads, public utilities, and other pertinent structures within the inundation area. In coordination with local emergency management, a list of downstream property owners and occupants, including phone numbers, may be plotted on or provided with the map for reference during an emergency.
2. Each map shall include: "The information in this map is for notifying downstream property owners by emergency management personnel."

If the department prepares a dam break map and analysis per 4VAC50-20-40 C, the owner shall use it to prepare a plan as required.

G. Upon request and payment per 4VAC50-20-40 C and 4VAC50-20-395, the department shall perform a simplified dam break analysis using an acceptable model, producing GIS shapefiles meeting criteria.

After analysis, the department shall send a letter to the owner with results, including the dam break zone map, hazard classification, and procedural compliance steps per the Dam Safety Act (§ 10.1-604) and this chapter.

(DCR-VSWCB-040) (09/16) 13

• Page 1 ---

VIRGINIA SOIL AND WATER

CONSERVATION BOARD

GUIDANCE DOCUMENT ON

DAM BREAK INUNDATION

ZONE MODELING AND

MAPPING PROCEDURES

(Approved September 7, 2016) (Revised November 16, 2017, June 28, 2018, and September 27, 2018)

Summary: This guidance document specifies the procedures to be utilized by the Virginia Soil and Water Conservation Board in determining the adequacy of a dam break inundation zone analysis which includes modeling and mapping prepared by an impounding structure owner and their engineer in accordance with 4VAC50-20-54.

Electronic Copy: An electronic copy of this guidance in PDF format is available on the Regulatory Town Hall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

The study entitled "Probable Maximum Precipitation Study for Virginia (November 2015)", the PMP Evaluation Tool, the Virginia PMP 2015 Watershed Calculation Spreadsheet, and related information may be found on the Department’s website at http://www.dcr.virginia.gov/dam-safety-and-floodplains/.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Dam Safety and Floodplain Management at dam@dcr.virgina.gov or by calling 804-371-6095 with any questions regarding the application of this guidance.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for the Department of Conservation and Recreation in administering the Dam Safety Program on behalf of the Virginia Soil and Water Conservation Board. This guidance provides a general interpretation of the applicable Code and Regulations but is not meant to be exhaustive in nature.

Each situation may differ and may require additional interpretation of the Dam Safety Act and attendant regulations. This guidance is not intended and cannot be relied on to create any rights, substantive or procedural, on the part of any person or entity.

Dam Break Inundation Zone Modeling and Mapping Procedures

I. Background: The Impounding Structure Regulations require an owner of a regulated dam to conduct a dam break analysis to support the appropriate hazard classification of the impounding structure in

(DCR-VSWCB-038) (09/18) 1

• Page 2 ---

accordance with 4VAC50-20-40 (Hazard Potential Classification of Impounding Structures).

Additionally, in accordance with 4VAC50-20-54 (Dam Break Inundation Zone Mapping) of the Impounding Structure Regulations, a dam break inundation zone map shall be developed that meets the requirements of the Dam Safety Act and the Impounding Structure Regulations for regulated dams with a High, Significant or Low Hazard Potential. This guidance outlines procedures that impounding structure (dam) owners and their engineers should utilize to conduct dam break analyses as well as to produce the associated maps.

II. Definitions (pursuant to § 10.1-604, 4VAC50-20-30, and 4VAC50-20-50): "Dam break inundation zone" means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

"Impounding structure" or "dam" means a man-made structure, whether a dam across a

watercourse or structure outside a watercourse, used or to be used to retain or store waters or other materials. The term includes: (i) all dams that are 25 feet or greater in height and that create an impoundment capacity of 15 acre-feet or greater, and (ii) all dams that are six feet or greater in height and that create an impoundment capacity of 50 acre-feet or greater. The term "impounding structure" shall not include: (a) dams licensed by the State Corporation Commission that are subject to a safety inspection program; (b) dams owned or licensed by the United States government; (c) dams operated primarily for agricultural purposes which are less than 25 feet in height or which create a maximum impoundment capacity smaller than 100 acre feet; (d) water or silt retaining dams approved pursuant to § 45.1-222 or 45.1-225.1 of the Code of Virginia; or (e) obstructions in a canal used to raise or lower water.

“PMF” means the Probable Maximum Flood and represents the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF shall be calculated from the probable maximum precipitation (PMP) derived from the Probable Maximum Precipitation Study for Virginia (and associated PMP Evaluation Tool and Database) (November 2015). The owner's engineer must

develop PMF hydrographs for 6-, 12-, and 24-hour durations. The hydrograph that creates the largest peak outflow is to be used to determine capacity for non-failure and failure analysis.

Present and planned land-use conditions shall be considered in determining the runoff characteristics of the drainage area.

“SDF” means the Spillway Design Flood and represents the largest flood that need be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Reductions in the established SDF may be evaluated through the use of incremental damage analysis.

III. Authority: The Dam Safety Act in the Code of Virginia contains the following authorities applicable to this guidance:

§ 10.1-605. Promulgation of regulations by the Board.

The Board shall adopt regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated…

(DCR-VSWCB-038) (09/18) 2

• Page 3 ---

§ 10.1-606.2 Mapping of Dam Break Inundation Zones An owner of an impounding structure shall prepare a map of the dam break inundation zone for the impounding structure in accordance with criteria set out in the Virginia Impounding Structure Regulations (4VAC50-20)…

Appendix 1 contains the Code of Virginia authorities (extended) applicable to this guidance and Appendix 2 contains the Impounding Structure Regulations authorities applicable to this guidance. These include: § 10.1-605. Promulgation of regulations by the Board. § 10.1-606.2 Mapping of Dam Break Inundation Zones 4VAC50-20-20. General Provisions 4VAC50-20-40. Hazard potential classifications of impounding structures.

4VAC50-20-50. Performance Standards Required for Impounding Structures 4VAC50-20-51. Special Criteria for Certain Low Hazard Impounding Structures 4VAC50-20-54. Dam break inundation zone mapping. 4VAC50-20-320 Acceptable Design Procedures & References 4VAC50-20-330 Other Applicable Dam Safety References

IV. Discussion and Interpretation:

The Impounding Structure Regulations require an owner of a regulated dam to conduct a dam break analysis to support the appropriate hazard classification of the impounding structure in accordance with 4VAC50-20-40 (Hazard Potential Classification of Impounding Structures).

Additionally, in accordance with 4VAC50-20-54 (Dam Break Inundation Mapping) of the Impounding Structure Regulations, a dam break inundation zone map shall be developed by completing a dam break analysis that meets the requirements of the Dam Safety Act and the Impounding Structure Regulations for regulated dams with a High, Significant or Low Hazard Potential.

Dam Break Analysis Modeling

A dam break analysis using approved hydrologic / hydraulic computer modeling shall be conducted by the Dam Owner’s Professional Engineer [Professional Engineer of Record (PEOR)]. Per 4VAC50-20-320 (Acceptable design procedures and references), a dam owner’s PEOR must utilize appropriate hydrologic / hydraulic computer modeling programs to complete a dam break analysis with the modeling effort conforming to the intended use of the chosen computer model. In an effort to aid both the dam owner and PEOR, this Guidance sets out the protocols / information that should be utilized when conducting hydrologic / hydraulic modeling for a Dam Break Analysis in the State of Virginia:

1. General Hydrologic / Hydraulic Notes a. The Virginia Impounding Structure Regulations require the Professional Engineer of Record (PEOR) to utilize standard industry hydrologic / hydraulic methods which result in the worst case inundation limits when modeling dam break analysis. The PEOR is required to provide sufficient documentation to justify the chosen storm durations utilized

in the analysis for all modeled watersheds. Please note that at any time during the review

(DCR-VSWCB-038) (09/18) 3

• Page 4 ---

of a Dam’s Failure Analysis Package, the Regional Engineer has the authority to request additional documentation from the PEOR to ensure the worst case hydrologic / hydraulic scenarios are being utilized. b. Mixing the criteria of one procedure, listed in 4VAC50-20-320 with criteria from another procedure, unless otherwise mentioned, is prohibited. c. Present and planned land-use for which a development plan has been officially approved by the locality in the dam break inundation zones downstream from the impounding structure shall be considered when conducting a dam break analysis.

1. Virginia PMP Implementation and Tool a. In December of 2015, Applied Weather Associates (AWA), on behalf of the Virginia Soil and Water Conservation Board and DCR Dam Safety, completed a statewide Probable Maximum Precipitation (PMP) study for Virginia to replace outdated 1970’s rainfall data

typically derived from Army Corps of Engineers Data (2015 Virginia PMP Study). The 2015 Virginia PMP Study added over 24,000 grid points each with hydrologic data throughout the Commonwealth to aide in development of the required 6-hour, 12-hour, and 24-hour rainfall numbers. b. As of March 23, 2016, a dam owner’s professional engineer is now required to use Virginia’s new 2015 PMP values to determine the appropriate 6-hour, 12-hour, and 24-hour rainfall values for the dam in question per section 4VAC50-20-50. The required PMP values should be calculated using the provided PMP Evaluation GIS Tool and Virginia PMP 2015 Watershed Calculations Spreadsheet which can be found on our website (http://www.dcr.virginia.gov/dam-safety-and-floodplains/pmp-tool). For further information on how to utilize the new PMP values when completing Dam Break Analysis projects in Virginia, please reference the Guidance Document on the New Probable Maximum Precipitation (PMP) Implementation which can also be found on the Department’s website (http://www.dcr.virginia.gov/dam-safety-and-floodplains/document/pmp-guidance-doc-20160323.pdf). c. Please note that with the adoption of the Virginia’s new PMP values, the use of the Army

Corps of Engineers’ (ACOE) HMR 51/52 program to develop PMP values for a watershed basin flowing to a dam in the State of Virginia is no longer permitted. d. The temporal curves from the 2018 Virginia PMP Temporal Distribution Analysis are Virginia based and developed from the 2015 Virginia PMP study. These temporal curves should be utilized to analyze the distribution for a dam's inflow drainage basin in conjunction with the PMP values from the 2015 Virginia PMP study. While the use of the NRCS TR-60 (Chapter 2, Figure 2-4) and NRCS 5-pt. distribution (24-hour only) is still permitted, it is not recommended. Please keep in mind that whatever rainfall pattern(s) are utilized by the dam owner’s professional engineer, the utilized rainfall pattern(s) must represent a physically possible scenario. e. The PEOR should not utilize an SCS Type II distribution when analyzing a dam’s inflow drainage basin (6-hour, 12-hour and 24-hour PMP values only). The use of the SCS Type II distribution may only be utilized in a Dam Failure Analysis (basin to the Dam and basins below the Dam) when analyzing events lower than the 6-hour, 12-hour, and 24-hour PMP events (100-year event or lower).

(DCR-VSWCB-038) (09/18) 4

• Page 5 ---

1. Controlling 6-, 12-, or 24-Hour PMP Rainfall Value a. Per section 4VAC50-20-50, the PEOR is required to analyze the 6-, 12-, and 24-hour PMP rainfall values (obtained from the 2015 Virginia PMP Study tool) to determine which PMP rainfall value is controlling for the dam in question. The controlling PMP is the value which results in largest peak outflow from the dam in question. b. In order to determine the controlling PMP value, the PEOR must apply the PMP value in question to the watershed draining to the dam being analyzed. The PEOR routes the watershed flows through the dam in question and obtains an outflow (flow leaving the dam in question). After determining the outflow value for all three PMP rainfall values (3 outflow values), the controlling PMP rainfall value is the one that provides the largest of the three outflow values calculated.

1. Topographic Modeling Requirements a. Topographic information [including topographic surfaces [digital elevation model (DEM), triangular irregular network (TIN), etc.)] utilized in the development of the hydrologic / hydraulic calculations and inundation mapping for a Dam Failure Analysis should be accurate (horizontally and vertically) to a level where 5 foot contour intervals (maximum) can be depicted truthfully [PEOR cannot utilize a contour interval greater than 5 feet to aide in accuracy when analyzing potential downstream impacts at modeled cross sections (home, businesses, utilities, etc.)]. With the availability of state-wide topographic data being available [VGIN Clearing House - make sure to click on “Show ArcGIS Desktop Content” on left side of webpage, (http://vgin.maps.arcgis.com/home/search.html?q=VBMP&t=content)], the PEOR should not utilize USGS topographic information (USGS Topographic Quad sheets) when completing detailed hydrologic / hydraulic analysis and inundation mapping for a Dam Failure Analysis in the State of Virginia. b. The minimum contour elevation difference as defined above should be utilized unless prior authorization for a larger contour elevation difference is granted by the Regional

Engineer. c. If adequate topographic information is not available, the dam owner must provide an alternative method for identifying potential damage locations that must be approved by the DCR Regional Engineer(s) or DCR Dam Safety staff, prior to initiating the evaluation.

1. Hydrologic / Hydraulic Computer Modeling a. The dam owner’s professional engineer (PEOR) may utilize 1D steady state modeling, 1D unsteady state modeling, or 2D unsteady state modeling when completing the required dam break analysis in the State of Virginia [(4VAC50-20-320, FEMA P-946 (July 2013)]. b. Computer modeling should generate appropriate inflow hydrographs which are routed through the dam and downstream of the dam. Some computer models that are acceptable include HEC-1, HEC-HMS, HEC-RAS, and the NRCS computer models TR-60 with TR-66. Other computer models may be used if approved by the DCR Regional Engineer prior to submitting the results to the Division of Dam Safety and Floodplain

(DCR-VSWCB-038) (09/18) 5

• Page 6 ---

Management. The PEOR is responsible for choosing the most appropriate method for the type of dam and watershed. c. The computer model shall be extended to a point downstream of the impounding structure where the water surface elevations of the Spillway Design Flood (SDF) with and without dam failure converge to within one foot of each other or to the last impacted structure caused by a sunny-day dam failure, whichever is farthest downstream (4VAC50-20-54). Please note that DCR Dam Safety staff have encountered situations in the State of Virginia where the modeling of the required SDF (non-breach and breach events) has gone in and out of convergence more than once. As a result, the modeling of the SDF (non-breach and breach events) shall be extended downstream to the last point of convergence.

1. Flow Attenuation

a. With regards to the upstream watershed flowing to the dam, 4VAC50-20-50, Sub-Section C states that the PMF “is the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region.” By accounting for attenuation (the reduction of the peak discharge as it moves downstream) in the watershed(s) flowing to the dam [upstream watershed(s)], the overall flow to the dam would not represent the most severe combination of hydrologic conditions possible (worst case scenario as required by the PMF definition in 4VAC50-20-50, Sub-Section C). Accordingly, the use of flow attenuation in the watershed(s) flowing to the dam [upstream watershed(s)] should not be used when conducting Dam Failure Analysis or dam spillway capacity calculations. b. With regards to the watershed(s) downstream of the dam, the use of flow attenuation within the downstream watershed(s) is also prohibited as it could result in false merge points (faster merges) for the PMF / PMF with dam failure and SDF / SDF with failure events. c. If any large water bodies are located within the dam’s upstream or downstream watersheds and the PEOR desires to utilize the storage properties of the large water

bodies in their modeling (situations other than “dams in series”), the PEOR should contact the assigned Regional Engineer for the dam in question to discuss the situation.

1. Downstream Watershed Flow Requirements a. When analyzing the watersheds downstream of the impounding structure, the dam owner’s PEOR should only utilize inflow values from other drainage basins up to the 100-year storm event when modeling the PMF, PMF with dam failure, SDF, and SDF with dam failure events (steady state and un-steady state modeling) per section 4VAC50-20-320 of the DCR Dam Safety Regulations [FEMA P-94 (April 2004 edition), FEMA P-946 (July 2013 edition)]. The maximum 100-year inflow is to prevent a shorter false convergence. b. In addition when analyzing the watersheds downstream of the impounding structure, the PEOR must utilize the same storm event equal to or less than the 100-year event for all modeled watersheds downstream of an impounding structure (uniform storm event). The PEOR may not mix and match storm events in watersheds modeled below an impounding structure (i.e. one watershed utilizes the 100-year storm event, second watershed utilizes the 50-year storm event, etc.).

(DCR-VSWCB-038) (09/18) 6

• Page 7 ---

c. If the SDF for the impounding structure in question is equal to or less than the 100-year storm event, the dam owner’s professional engineer should only utilize flow values up to the 50-year storm event in the watersheds downstream of the impounding structure in order to ensure a false downstream merge point between the SDF and SDF with dam failure does not occur. d. If the SDF is reduced to the 50-year storm event through the incremental damage assessment (IDA) process (see 4VAC50-20-52 Incremental Damage Assessment for more information), the dam owner’s engineer should only utilize flow values up to the 25-year storm event in watersheds downstream of the impounding structure. e. When modeling the Sunny Day dam failure event, the dam owner’s professional engineer should utilize flow values up to 8% of the 100-year storm event which is assumed to be bank full conditions for average conditions in the streams located in the watersheds downstream of the impounding structure. Please note that depending on the stream

geometry for the basins modeled downstream of the dam in question, the flow values from 8% of the 100-year may be too large to simulate a bank full event. The PEOR should analysis the geometry of the streams in the basins downstream of the dam in question and utilize professional engineer judgment when applying downstream flow values during the Sunny Day Breach event (PEOR may end up only using 6% of the 100-year to simulate bank full conditions in the basins downstream of the dam when completing Sunny Day Breach event due to the geometry of the basin’s streams). f. A quick reference table regarding the allowed flow values in downstream watersheds can be found below:

Required Modeling Spillway Design Flood Allowed Storm Event in Event (SDF) Downstream Watersheds Probably Maximum Flood

• Downstream Flows ≤ 100-Yr. Storm (PMF) PMF with Dam Failure - Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood SDF >100-Yr. Downstream Flows ≤ 100-Yr. Storm (SDF) SDF with Dam Failure SDF >100-Yr. Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood 50-Yr.< SDF ≤ 100-Yr. Downstream Flows ≤ 50-Yr. Storm (SDF) SDF with Dam Failure 50-Yr.< SDF ≤ 100-Yr. Downstream Flows ≤ 50-Yr. Storm Spillway Design Flood SDF = 50-Yr. (IDA) Downstream Flows ≤ 25-Yr. Storm (SDF) SDF with Dam Failure SDF = 50-Yr. (IDA) Downstream Flows ≤ 25-Yr. Storm Downstream Flows = up to 8% of Sunny Day Dam Failure -100-Yr. Storm (bank full situation)

1. Engineering Modeling Criteria a. When completing a dam break analysis, the dam owner’s PEOR shall use sanctioned engineering criteria and sound professional judgment for the worst case storm conditions in the selection of: i. Use of available topography and supporting field surveys.

II. Rainfall distributions.

(DCR-VSWCB-038) (09/18) 7

[TABLE 7-1] Required Modeling Event | Spillway Design Flood (SDF) | Allowed Storm Event in Downstream Watersheds Probably Maximum Flood (PMF) | - | Downstream Flows ≤ 100-Yr. Storm PMF with Dam Failure | - | Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood (SDF) | SDF >100-Yr. | Downstream Flows ≤ 100-Yr. Storm SDF with Dam Failure | SDF >100-Yr. | Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood (SDF) | 50-Yr.< SDF ≤ 100-Yr. | Downstream Flows ≤ 50-Yr. Storm SDF with Dam Failure | 50-Yr.< SDF ≤ 100-Yr. | Downstream Flows ≤ 50-Yr. Storm Spillway Design Flood (SDF) | SDF = 50-Yr. (IDA) | Downstream Flows ≤ 25-Yr. Storm SDF with Dam Failure | SDF = 50-Yr. (IDA) | Downstream Flows ≤ 25-Yr. Storm Sunny Day Dam Failure | - | Downstream Flows = up to 8% of 100-Yr. Storm (bank full situation)

[/TABLE]

• Page 8 ---

III. Development of SCS Curve Numbers.

IV. Determination of the Time of Concentration and/or lag time values. v. Development of spillway rating curves, area-capacity curves, and stage-storage discharge curves.

VI. Flood routing procedures and coefficients.

VII. Dam failure parameters.

VIII. Evaluation of multiple dams if modeling dams in series conditions.

IX. Other steps used during the modeling and analysis of flood conditions in the watershed basin and downstream of the impounding structure.

1. Modeling Dams in Series a. If the PEOR determines that a “dams in series” condition may be present after analyzing the dam owner’s existing dam impoundment, it is recommended that he or she contact the

assigned Regional Engineer for the dam in question to discuss the situation. Every dam analysis is different and depending on the distance between the multiple dams, a “dams in series” situation requiring additional analysis may or may not be required. b. If the dam in question (Dam A) is located directly upstream or downstream of an already existing dam impoundment (Dam B), additional analysis may be required for a Dam Break Analysis to determine the “dams in series” impacts. As part of the analysis, the PEOR is required to look at how both Dam A and Dam B may impact each other during the required modeling events regardless of whether the dam in question is the upstream or downstream dam. c. An example of a potential scenario would be the failure of Dam A overtops the downstream Dam B and results in a failure of Dam B. In this situation, a specific scenario would need to be modeled and evaluated where the failure of both dams is taken into account when looking at the hazard classification / SDF determination for Dam A. d. After evaluating all of the potential modeling scenarios (non-failure and failure events) for the “dams in series” condition, the PEOR would be required to utilize the worst case scenarios when determining the hazard classification / SDF storm event and downstream

inundation limits.

10. Submission Requirements a. As part of the dam break analysis submission to DCR Dam Safety, it is required that all data utilized to complete the hydrologic / hydraulic calculations / mapping [computer program data and / or hand calculations (excel format, etc.)] for the analysis in question be provided in both hard copy and digital format on a CD or DVD disk. b. Please ensure the provided dam break analysis report clearly dictates all methodology and computer programs utilized to develop the hydrologic / hydraulic calculations / mapping for the submitted dam break analysis. All data provided on the CD / DVD disk should be clearly labeled (both the actual disk and data on the disk) and efficiently organized to ensure proper review by DCR Dam Safety.

Please note that the PEOR should adhere to and conduct all calculations / analyses utilizing standard engineer practices and judgements. The judgments and the engineering criteria used by the dam owner’s engineer shall be reviewed and approved by the DCR Regional Engineer(s) or DCR Dam Safety staff for appropriateness. The DCR Regional Engineer(s) or DCR Dam Safety

(DCR-VSWCB-038) (09/18) 8

• Page 9 ---

staff will provide specific guidance via written correspondence to the dam owner should the judgments or the use of the engineering criteria in conjunction with a dam break analysis be determined to be inappropriate.

Dam Break Analysis Mapping

This section requires that dam break inundation zone maps shall be provided to the Department to meet the requirements set out in Hazard Potential Classifications of Impounding Structures (4VAC50-20-40), Emergency Action Plan (EAP) for High and Significant Potential Hazard Impounding Structures (4VAC50-20-175), Dam Break Inundation Mapping (4VAC50-20-54), and Emergency Preparedness for Low Hazard Potential Impounding Structures (4VAC50-20-177), as applicable. In an effort to aid the Professional Engineer of Record (PEOR) in completing acceptable inundation / EAP maps per current DCR Dam Safety Regulations, DCR

has provided a detailed explanation of the required mapping protocol and information to be utilized with the mapping. As a result, the following mapping protocol and information should be utilized on all inundation maps submitted to DCR Dam Safety as part of a dam break analysis study:

1. Official state of Virginia Professional Engineer Seal (signed and dated) a. PEOR must be a licensed in the state of Virginia and be of good standing per the Department of Professional & Occupational Regulation.

1. Inundation map size a. Inundation maps should not be produced in a size larger than 11’’ by 17” and the final size must be folded to a size of 8” by 11”. b. If the inundation area is too large to be shown on one map, an index map should be included which shows the full extent of the inundation area and the outline of the detailed maps with an identifier for each map sheet. This information will be used to aid emergency responders in quickly locating impacted structures and conducting

evacuations. c. If multiple maps are indeed involved, PEOR should utilize appropriate match lines (see example in Appendix 3) within the inundation mapping to line up each sheet correctly through the proposed inundation corridor.

1. Inundation map colors and line types a. The PEOR has the choice to provide inundation mapping in either black and white or color (or a mixture of both). Please note that color maps must still be legible if copied to black & white for emergency purposes (mass copies during emergency situation(s)). b. If the inundation mapping is provided in black and white, all provided inundation limits and topographic contour lines should be portrayed with different line types or shading patterns. c. If the inundation mapping is provided in color, all provided inundation limits and topographic contours lines should be portrayed with different colors, linetypes (EAP purposes), or shading patterns.

(DCR-VSWCB-038) (09/18) 9

• Page 10 ---

d. Potential damage locations (impacted structure such as homes, businesses, roads, utilities, etc.) shall be clearly shown and if cross-hatching is used it should not obscure the structures.

1. Aerial background imagery a. If the PEOR chooses to produce an inundation map in color, an aerial image should be added to the submitted mapping to aid in review and during emergency situations. b. If an aerial image is utilized, please provide (if available) origin information such as location obtained and date flown for the aerial image.

1. Inundation limits a. The following inundation limits shall be included on all inundation mapping: i. SDF without dam failure

II. SDF with dam failure III. PMF with dam failure IV. Sunny day dam failure The PEOR must ensure the inundation lines are legible and associated line work clearly identifies intended storm event.

1. Topographic contour lines a. All submitted maps should contain topographic contour lines utilized for the analysis in question. b. Elevation of major contours should be labeled (labeling frequency is up to the PEOR but the frequency should be large enough for review purposes). c. Topographic contour lines should not have an associated line width (thickness) and should not be the same color (or shade) as the provided inundation limits.

1. Topographic cross sections a. All cross sections utilized in the hydraulic study (HEC-RAS) should be shown on the

inundation mapping (excludes interpolated cross sections).

1. Analyzed downstream waterway alignment a. The analyzed downstream waterway (stream and / or river) alignment utilized in the hydraulic modeling (HEC-RAS) should be included in the inundation mapping. b. The alignment should have legible and accurate stationing included which matches the hydraulic modeling (HEC-RAS) and provided cross sections.

1. Labels within inundation map a. All provided labels must be legible and should include text masks if needed. b. All hydraulic modeling cross sections must be labeled (labels must match hydraulic modeling (HEC-RAS)) c. All roadways must be labeled and include state / interstate route numbers (if available) d. All existing waterways and water bodies must be labeled (if available) e. All existing dam impoundments must be labeled (if available) f. The point of convergence between the SDF and the SDF with dam failure must be clearly marked (end of analysis).

(DCR-VSWCB-038) (09/18) 10

• Page 11 ---

10. Sheet and title bar requirements a. Accurate scale bar and north arrow b. Detailed mapping legend c. Title of study in question d. Location of study in question (County) e. Sheet title f. State dam inventory number g. Sheet number h. Date i. Map scale description j. Horizontal and vertical datum utilized for mapping purposes (i.e. NAD83, NAVD88, StatePlane Virginia South, etc.)

11. Informational map text for all dam break mapping a. Text information regarding origin of topographic contour data, aerial imagery (if used), horizontal datum, and vertical datum should be included. b. If any stream tributaries downstream of the dam are not modeled, text similar to the following should be included on all relevant inundation maps: “Water surface elevations shown along all tributaries draining into X waterway are approximate and shown as backwater conditions only. An analysis of these tributaries was not completed as part of this dam break study.” As every dam break study is different, the verbiage provided above should be changed to meet the specific issues or situations found during said study. c. Any relevant information regarding mapped inundation limits or utilized flood wave times should be included.

When completing the inundation maps for the dam break analysis, the PEOR has the option to utilize the same inundation maps for both the dam break inundation study and the Emergency Action Plan (EAP) per 4VAC50-20-54 of the Dam Safety Regulations. If the PEOR decides not

to utilize the same inundation maps for the dam break analysis and EAP, the standalone EAP maps must include all of the information presented in the dam break analysis maps and adhere to all of the information presented above this section (section discussing dam break mapping requirements). If the PEOR decides to utilize the same inundation map for both purposes, the same information / protocol must be utilized as described above (items 1-11) and the following information should also be added to the inundation maps:

1. Additional inundation limits a. Probable Maximum Flood without dam failure

1. Additional map text for all inundation mapping a. The following text is required on all inundation maps also utilized for the Emergency Action Plan: “The information contained on this map is prepared for use in the notification of downstream property owners by emergency management personnel.” b. Since local officials are likely to use the maps for evacuation purposes, the following note should be attached to each map: “Mapping of flooded areas and flood wave travel

(DCR-VSWCB-038) (09/18) 11

• Page 12 ---

times are approximate. Timing and extent of actual inundation may differ from the information presented on this map.”

1. Potential damage locations The following information shall be added and clearly marked at each potential damage location (impacted structure such as homes, businesses, roads, utilities, etc.) on each map: a. Closest cross section number (alignment stationing), road name with route number (if applicable), and distance downstream from the dam to the nearest tenth of a mile b. Relative time of travel, in minutes, for the following events: i. SDF without dam failure II. SDF with dam failure III. PMF without dam failure IV. PMF with dam failure

v. Sunny day dam failure c. Maximum depth of water at each impact location in feet (depth of water on the structure or road crossing) for the following events: i. SDF without dam failure II. SDF with dam failure III. PMF without dam failure IV. PMF with dam failure v. Sunny day dam failure

As part of the dam break analysis submittal, all inundation limits (linework) utilized in the inundation / EAP mapping should be submitted to DCR Dam Safety electronically in GIS format [shapefile (shp)] on the correct state coordinate system. In addition, all inundation / EAP maps should be submitted to the DCR Regional Engineer both in hard copy format and electronic format (Windows compatible image format). Acceptable digital image formats consist of PDF (adobe), JPEG, or TIF files. Image resolution should be sufficient to view and read the necessary information noted above. Upon acceptance by the DCR Regional Engineer, final

electronic copies of the entire approved Dam Inundation Study (all hydrologic / hydraulic calculations, reports, mapping, inundation linework, and other relevant information utilized in the study) should also be submitted to the DCR Dam Safety Central Office (Attention of the Mapping Coordinator) at 600 East Main Street, 24th Floor, Richmond, VA 23219.

In an effort to aid the PEOR in completing an accurate and acceptable inundation / EAP map, an example dam break analysis inundation map (with additional EAP information) has been included in Appendix 3 of this guidance document for example purposes. Please note the PEOR does not have to follow the format of the map provided in Appendix 3 as the map is intended to be an example map for informational purposes. Additionally, in accordance with 4VAC50-20-54 F.1., “a list of downstream inundation zone property owners and occupants, including telephone numbers may be plotted on the map or may be provided with the map for reference during an emergency”. Please be mindful that all inundation maps / EAP maps submitted by the PEOR regardless of whether they follow the example map in Appendix 3 should follow the protocol and include the required information as discussed in this Guidance in order to be accepted by DCR Dam Safety.

(DCR-VSWCB-038) (09/18) 12

• Page 13 ---

Hazard Classification Determination The Impounding Structure Regulations require an owner of a regulated dam to conduct a dam break analysis to support the appropriate hazard classification of the impounding structure in accordance with 4VAC50-20-40 (Hazard Potential Classification of Impounding Structures).

Procedures for the interpretation of Hazard Classification which directly relates to the modeling and mapping procedures set forth in this document can be found in the Guidance Document on Impounding Structure Hazard Classification Procedures.

V. Adoption, Amendments, and Repeal: This document will remain in effect until rescinded or superseded.

(DCR-VSWCB-038) (09/18) 13

• Page 14 ---

Appendix 1 Applicable Code of Virginia Authorities.

The Code of Virginia contains the following authorities applicable to this Guidance:

§ 10.1-604.1. Determination of hazard potential classification.

A. The hazard potential classification for an impounding structure shall be determined by one of the following procedures: …

1. The owner may propose a hazard potential classification that shall be subject to approval by the Board. To support the proposed hazard classification, an analysis shall be conducted by the owner's engineer and shall comply with the criteria set out in the Impounding Structure Regulations (4VAC50-20). If the engineer finds that the impounding structure has a low hazard potential classification, the owner shall be eligible for general permit coverage in accordance

with § 10.1-605.3.

An impounding structure's hazard potential classification's determination shall include an analysis of those hazards created by flood and nonflood dam failures. In conducting the hazard potential classification, the Department or the owner's engineer may utilize an incremental damage analysis. When considering the failure of the impounding structure under a flood condition, such engineers shall only consider those hazards that exceed those created by the flood event.

§ 10.1-606.2. Mapping of dam break inundation zones.

A. An owner of an impounding structure shall prepare a map of the dam break inundation zone for the impounding structure in accordance with criteria set out in the Virginia Impounding Structure Regulations (4VAC50-20). Existing maps prepared by the locality in accordance with these regulations may be used for this purpose.

B. All maps prepared in accordance with subsection A shall be filed with the Department of Conservation and Recreation and with the offices with plat and plan approval authority or zoning responsibilities as designated by the locality for each locality in which the dam break inundation

zone resides. … D. All properties identified within the dam break inundation zone shall be incorporated by the owner into the dam safety emergency action plan of that impounding structure so as to ensure the proper notification of persons downstream and other affected persons or property owners in the event of an emergency condition at the impounding structure.

(DCR-VSWCB-038) (09/18) 14

• Page 15 ---

Appendix 2 Applicable Impounding Structure Regulations Authorities.

The Impounding Structure Regulations contains the following authorities applicable to this Guidance.

4VAC50-20-40. Hazard potential classifications of impounding structures.

A. Impounding structures shall be classified in one of three hazard classifications as defined in subsection B of this section and Table 1.

B. For the purpose of this chapter, hazards pertain to potential loss of human life or damage to the property of others downstream from the impounding structure in event of failure or faulty operation of the impounding structure or appurtenant facilities. Hazard potential classifications of impounding structures are as follows:

1. High Hazard Potential is defined where an impounding structure failure will cause probable loss of life or serious economic damage. "Probable loss of life" means that impacts will occur that are likely to cause a loss of human life, including but not limited to impacts to residences, businesses, other occupied structures, or major roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, major roadways, railroads, personal property, and agricultural interests. "Major roadways" include, but are not limited to, interstates, primary highways, high-volume urban streets, or other high-volume roadways, except those having an AADT volume of 400 vehicles or less in accordance with 4VAC50-20-45.
2. Significant Hazard Potential is defined where an impounding structure failure may cause the loss of life or appreciable economic damage. "May cause loss of life" means that impacts will occur that could cause a loss of human life, including but not limited to impacts to facilities that are frequently utilized by humans other than residences, businesses, or other occupied structures, or to secondary roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, secondary roadways, railroads, personal property, and agricultural interests. "Secondary roadways" include, but are not limited

to, secondary highways, low-volume urban streets, service roads, or other low-volume roadways, except those having an AADT volume of 400 vehicles or less in accordance with 4VAC50-20-45.

1. Low Hazard Potential is defined where an impounding structure failure would result in no expected loss of life and would cause no more than minimal economic damage. "No expected loss of life" means no loss of human life is anticipated.

C. To support the appropriate hazard potential classification, dam break analysis shall be conducted by the owner's engineer or the department in accordance with one of the following alternatives and utilizing procedures set out in 4VAC50-20-54.

1. The owner of an impounding structure that does not currently hold a regular or conditional certificate from the board, or the owner of an impounding structure that is already under certificate but the owner believes that a condition has changed downstream of the impounding structure that may reduce its hazard potential classification, may request in writing that the department conduct a simplified dam break inundation zone analysis to determine whether the impounding structure has a low hazard potential classification. The owner shall pay a fee to the department in accordance with 4VAC50-20-395 for conducting each requested analysis. The

(DCR-VSWCB-038) (09/18) 15

• Page 16 ---

department shall address requests in the order received and shall strive to complete analysis within 90 days; or

1. The owner may propose a hazard potential classification that shall be subject to approval by the board. To support the proposed hazard potential classification, an analysis shall be conducted by the owner's engineer and submitted to the department. The hazard potential classification shall be certified by the owner.

D. Findings of the analysis conducted pursuant to subsection C of this section shall result in one of the following actions:

1. For findings by the department resulting from analyses conducted in accordance with subdivision C 1 of this section: a. If the department finds that the impounding structure appears to have a low hazard potential classification, the owner may be eligible for general permit coverage in accordance with 4VAC50-20-103.

b. If the department finds that the impounding structure appears to have a high or significant hazard potential classification, the owner's engineer shall provide further analysis in accordance with the procedures set out in 4VAC50-20-54 and this chapter. The owner may be eligible for grant assistance from the Dam Safety, Flood Prevention and Protection Assistance Fund in accordance with Article 1.2 (§ 10.1-603.16 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

1. For findings by the owner's engineer resulting from analyses conducted in accordance with subdivision C 2 of this section: a. If the engineer finds that the impounding structure has a low hazard potential classification, the owner may be eligible for general permit coverage in accordance with 4VAC50-20-103; or b. If the engineer finds that the impounding structure appears to have a high or significant hazard potential classification, then the owner shall comply with the applicable certification requirements set out in this chapter.

E. An incremental damage analysis in accordance with 4VAC50-20-52 may be utilized as part of a hazard potential classification by the owner's engineer.

F. Impounding structures shall be subject to reclassification by the board as necessary.

4VAC50-20-50. Performance Standards Required for Impounding Structures G. In accordance with the definitions provided by § 10.1-604 of the Code of Virginia and 4VAC50-20-30, an impounding structure shall be regulated if the impounding structure is 25 feet or greater in height and creates a maximum impounding capacity of 15 acre-feet or greater, or the impounding structure is six feet or greater in height and creates a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia. Impounding structures exempted from this chapter are those that are:

1. Licensed by the State Corporation Commission that are subject to a safety inspection program;
2. Owned or licensed by the United States government;
3. Operated primarily for agricultural purposes that are less than 25 feet in height or that create a maximum impoundment capacity smaller than 100 acre-feet;
4. Water or silt-retaining dams approved pursuant to § 45.1-222 or 45.1-225.1 of the Code of Virginia; or
5. Obstructions in a canal used to raise or lower water.

(DCR-VSWCB-038) (09/18) 16

• Page 17 ---

Impounding structures of regulated size and not exempted shall be constructed, operated and maintained such that they perform in accordance with their design and purpose throughout the life of the project. For impounding structures, the spillway capacity shall perform at a minimum to safely pass the appropriate spillway design flood as determined in Table 1. For the purposes of utilizing Table 1, Hazard Potential Classification shall be determined in accordance with

4VAC50-20-40.

TABLE 1

Impounding Structure Regulations

Applicable to all impounding structures that are 25 feet or greater in height and that create a maximum impounding capacity of 15 acre-feet or greater, and to all impounding structures that are six feet or greater in height and that create a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia.

Spillway Design Spillway Design Minimum Flood (SDF) B for Hazard Potential Flood (SDF) B Threshold for Existing Class of Dam for New Incremental Impounding Construction F Damage Analysis Structures F, G High PMF C 0.9 PMP H 100-YR D Significant 0.5 PMF 0.5 PMF 100-YR D Low 100-YR D 100-YR D 50-YR E B. The spillway design flood (SDF) represents the largest flood that need be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Reductions in the established SDF may be evaluated through the use of incremental damage analysis pursuant to 4VAC50-20-52. The SDF established for an impounding structure shall not be less than those standards established elsewhere by state law or regulations, including but not limited to the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870). Due to potential for future development in the dam break inundation zone that would necessitate higher spillway design flood standards or other considerations, owners may find it advisable to consider a higher spillway design flood standard than is required.

C. PMF: Probable Maximum Flood is the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF shall be calculated from the probable maximum precipitation (PMP) derived from the Probable Maximum Precipitation Study for Virginia (and associated PMP Evaluation Tool and Database) (November 2015). The owner's engineer must develop PMF hydrographs for 6-, 12-, and 24-hour durations. The hydrograph that creates the largest peak outflow is to be used to determine capacity for nonfailure and failure analysis. Present and planned land-use conditions shall be considered in determining the runoff characteristics of the drainage area.

(DCR-VSWCB-038) (09/18) 17

[TABLE 17-1] TABLE 1 Impounding Structure Regulations | | | Applicable to all impounding structures that are 25 feet or greater in height and that create a maximum impounding capacity of 15 acre-feet or greater, and to all impounding structures that are six feet or greater in height and that create a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia. | | | Hazard Potential Class of Dam | Spillway Design Flood (SDF) B for New Construction F | Spillway Design Flood (SDF) B for Existing Impounding Structures F, G | Minimum Threshold for Incremental Damage Analysis High | PMF C | 0.9 PMP H | 100-YR D Significant | 0.5 PMF | 0.5 PMF | 100-YR D Low | 100-YR D | 100-YR D | 50-YR E

[/TABLE]

• Page 18 ---

D. 100-Yr: 100-year flood represents the flood magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as an exceedance probability with a 1.0% chance of being equaled or exceeded in any given year. Present and planned land-use conditions shall be considered in determining the runoff characteristics of the drainage area.

E. 50-Yr: 50-year flood represents the flood magnitude expected to be equaled or exceeded on the average of once in 50 years. It may also be expressed as an exceedance probability with a

1. 0% chance of being equaled or exceeded in any given year. Present and planned land-use conditions shall be considered in determining the runoff characteristics of the drainage area.

F. For the purposes of Table 1 "Existing impounding structure" and "New construction" are defined in 4VAC50-20-30.

G. An existing impounding structure as defined in 4VAC50-20-30, that is currently classified as high hazard, or is subsequently found to be high hazard through reclassification, shall only be

required to pass the flood resulting from 0.6 PMP instead of the flood resulting from the 0.9 PMP SDF if the dam owner meets the requirements set out in 4VAC50-20-53.

H. PMP: Probable maximum precipitation means the theoretically greatest depth of precipitation for a given duration that is meteorologically possible over a given size storm area at a particular geographical location at a particular time of year with no allowance made for future long-term climatic trends. In practice, this is derived by storm transposition and moisture adjustment to observed storm patterns. In Virginia, the 0.9 PMP is meant to characterize the maximum recorded rainfall event within the Commonwealth.

4VAC50-20-51. Special Criteria for Certain Low Hazard Impounding Structures I. Notwithstanding the requirements of this chapter, should the failure of a low hazard potential impounding structure cause no expected loss of human life and no economic damage to any property except property owned by the impounding structure owner, then the owner may follow the below requirements instead of the requirements specified in this chapter:

1. No map required pursuant to 4VAC50-20-54 shall be required to be developed for the impounding structure should a licensed professional engineer certify that the impounding

structure is a low hazard potential impounding structure and eligible to utilize the provisions of this section;

1. The spillway design flood for the impounding structure is recommended as a minimum 50-year flood; however, no specific spillway design flood shall be mandatory for an impounding structure found to qualify under the requirements of this section;
2. No emergency preparedness plan prepared pursuant to 4VAC50-20-177 shall be required.

However, the impounding structure owner shall notify the local emergency services coordinator in the event of a failure or emergency condition at the impounding structure;

1. An owner shall perform inspections of the impounding structure annually in accordance with the requirements of 4VAC50-20-105. No inspection of the impounding structure by a licensed professional engineer shall be required, however, so long as the owner certifies at the time of operation and maintenance certificate renewal that conditions at the impounding structure and downstream are unchanged since the last inspection conducted by a licensed professional engineer; and
2. No certificate or permit fee established in this chapter shall be applicable to the impounding structure.

(DCR-VSWCB-038) (09/18) 18

• Page 19 ---

B. Any owner of an impounding structure electing to utilize the requirements of subsection A of this section shall otherwise comply with all other requirements of this chapter applicable to low hazard impounding structures.

C. The owner shall notify the department immediately of any change in circumstances that would cause the impounding structure to no longer qualify to utilize the provisions of this section.

4VAC50-20-54. Dam break inundation zone mapping.

D. Dam break inundation zone maps shall be provided to the department to meet the requirements set out in Hazard Potential Classifications of Impounding Structures (4VAC50-20-40), Emergency Action Plan for High and Significant Potential Hazard Impounding Structures (4VAC50-20-175), and Emergency Preparedness for Low Hazard Potential Impounding Structures (4VAC50-20-177), as applicable.

B. The location of the end of the inundation mapping should be indicated where the water surface elevation of the dam break inundation zone and the water surface elevation of the spillway design flood during an impounding structure nonfailure event converge to within one foot of each other. The inundation maps shall be supplemented with water surface profiles showing the peak water surface elevation prior to failure and the peak water surface elevation after failure.

C. All inundation zone map(s), except those utilized in meeting the requirements of Emergency Preparedness for Low Hazard Potential Impounding Structures (4VAC50-20-177), shall be signed and sealed by a licensed professional engineer.

D. Present and planned land-use for which a development plan has been officially approved by the locality in the dam break inundation zones downstream from the impounding structure shall be considered in determining the classification.

E. For determining the hazard potential classification, a minimum of the following shall be provided to the department:

1. A sunny day dam break analysis utilizing the volume retained at the normal or typical water surface elevation of the impounding structure;

1. A dam break analysis utilizing the spillway design flood with a dam failure;
2. An analysis utilizing the spillway design flood without a dam failure; and
3. For the purposes of future growth planning, a dam break analysis utilizing the probable maximum flood with a dam failure.

F. To meet the Emergency Action Plan requirements set out in 4VAC50-20-175, all owners of High and Significant Hazard Potential impounding structures shall provide dam break inundation map(s) representing the impacts that would occur with both a sunny day dam failure and a spillway design flood dam failure.

1. The map(s) shall be developed at a scale sufficient to graphically display downstream inhabited areas and structures, roads, public utilities that may be affected, and other pertinent structures within the identified inundation area. In coordination with the local organization for emergency management, a list of downstream inundation zone property owners and occupants, including telephone numbers may be plotted on the map or may be provided with the map for reference during an emergency.
2. Each map shall include the following statement: "The information contained in this map is prepared for use in notification of downstream property owners by emergency management personnel."

(DCR-VSWCB-038) (09/18) 19

• Page 20 ---

Should the department prepare a dam break inundation zone map and analysis in response to a request received pursuant to 4VAC50-20-40 C, the owner shall utilize this map to prepare a plan in accordance with this subsection.

G. Upon receipt of a written request in accordance with 4VAC50-20-40 C and receipt of a payment in accordance with 4VAC50-20-395, the department shall conduct a simplified dam break inundation zone analysis. In conducting the analysis, a model acceptable to the department shall be utilized. The analysis shall result in maps produced as Geographic Information System shape files for viewing and analyzing and shall meet the other analysis criteria of this section.

Upon completion of the analysis, the department shall issue a letter to the owner communicating the results of the analysis including the dam break inundation zone map, stipulating the department's finding regarding hazard potential classification based on the information available to the department, and explaining what the owner needs to do procedurally with this information to be compliant with the requirements of the Dam Safety Act (§ 10.1-604

et seq.) and this chapter.

4VAC50-20-320 Acceptable Design Procedures & References To ensure consistency of approach, within the major engineering disciplines of hydrology, hydraulics, soils and foundations, structures, and general civil design, criteria and approaches from multiple sources shall not be mixed for developing the design of a given feature or facility without approval of the director. In all cases the owner's engineer shall identify the source of the criteria.

The following are acceptable as design procedures and references:

1. The design procedures, manuals and criteria used by the United States Army Corps of Engineers.
2. The design procedures, manuals and criteria used by the United States Department of Agriculture, Natural Resources Conservation Service.
3. The design procedures, manuals and criteria used by the United States Department of the Interior, Bureau of Reclamation.
4. The design procedures, manuals and criteria used by the United States Department of Commerce, National Weather Service.

1. The design procedures, manuals and criteria used by the United States Federal Energy Regulatory Commission.
2. Other design procedures, manuals and criteria that are accepted as current, sound engineering practices, as approved by the director prior to the design of the impounding structure.

4VAC50-20-330 Other Applicable Dam Safety References A. Manuals, guidance, and criteria used by the Federal Emergency Management Agency, including the following:

1. Federal Guidelines for Dam Safety: Emergency Action Planning for Dam Owners, U.S.

Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted January 2004; FEMA 64 or as revised.

1. Federal Guidelines for Dam Safety: Selecting and Accommodating Inflow Design Floods for Dams, U.S. Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted April 2004; FEMA 94 or as revised.

B. Manuals, guidance, and forms provided by the department. Such materials may be located

on the department's website at: http://www.dcr.virginia.gov.

(DCR-VSWCB-038) (09/18) 20

• Page 21 ---

Appendix 3 Example Dam Break Analysis Inundation Map (with additional EAP information)

(DCR-VSWCB-038) (09/18) 21

• Page 1 ---

VIRGINIA SOIL AND WATER

CONSERVATION BOARD

GUIDANCE DOCUMENT ON

DAM BREAK INUNDATION

ZONE MODELING AND

MAPPING PROCEDURES

(Approved September 7, 2016) (Revised November 16, 2017, June 28, 2018, and September 27, 2018)

This guidance outlines procedures for the Virginia Soil and Water Conservation Board to assess dam break inundation zone analyses, including modeling and mapping by owners and engineers per 4VAC50-20-54.

An electronic PDF of this guidance is available on the Regulatory Town Hall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

The "Probable Maximum Precipitation Study for Virginia (Nov 2015)", PMP Evaluation Tool, and Watershed Spreadsheet are on the Department’s website at http://www.dcr.virginia.gov/dam-safety-and-floodplains/.

Contact the Department of Conservation and Recreation’s Division of Dam Safety and Floodplain Management at dam@dcr.virgina.gov or 804-371-6095 for questions about this guidance.

This guidance provides standard procedures for the Department of Conservation and Recreation in administering the Dam Safety Program for the Virginia Soil and Water Conservation Board, offering a general interpretation of applicable laws, not exhaustive.

Situations vary and may need further interpretation of the Dam Safety Act and regulations. This guidance does not create any rights or obligations for any person or entity.

Dam Break Inundation Zone Modeling and Mapping Procedures

I. Background: The Impounding Structure Regulations require owners of regulated dams to conduct a dam break analysis to support hazard classification.

(DCR-VSWCB-038) (09/18) 1

• Page 2 ---

per 4VAC50-20-40 (Hazard Classification of Impounding Structures).

Per 4VAC50-20-54, owners must develop dam break inundation zone maps meeting the Dam Safety Act and regulations for dams with High, Significant, or Low Hazard Potential. This guidance details procedures for analyses and mapping.

II. Definitions (per § 10.1-604, 4VAC50-20-30, 4VAC50-20-50): "Dam break inundation zone" is the downstream area affected by dam failure.

"Impounding structure" or "dam" means a man-made structure, whether across a

It includes dams ≥25 ft high with ≥15 acre-feet capacity, or ≥6 ft high with ≥50 acre-feet capacity, excluding licensed dams, U.S. dams, certain agricultural dams, approved water/silt dams, or canal obstructions.

“PMF” means the Probable Maximum Flood and represents the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF shall be calculated from the probable maximum precipitation (PMP) derived from the Probable Maximum Precipitation Study for Virginia (and associated PMP Evaluation Tool and Database) (November 2015). The owner's engineer must

develop PMF hydrographs for 6-, 12-, and 24-hour durations, using the largest peak for capacity analysis.

Present and planned land use must be considered when determining runoff characteristics.

“SDF” is the Spillway Design Flood, the largest flood to consider; structures must safely pass it. Reductions may be evaluated via incremental damage analysis.

III. Authority: The Virginia Dam Safety Act grants authorities applicable to this guidance:

§ 10.1-605. Promulgation of regulations by the Board.

The Board shall adopt regulations to ensure impounding structures are properly and safely constructed, maintained, and operated.

(DCR-VSWCB-038) (09/18) 2

• Page 3 ---

§ 10.1-606.2: Owners must prepare dam break inundation zone maps per Virginia Impounding Structure Regulations (4VAC50-20)…

Appendices 1 and 2 list Virginia authorities, including § 10.1-605, § 10.1-606.2, 4VAC50-20-20, 4VAC50-20-40, covering regulations and hazard classifications.

4VAC50-20-50. Performance Standards Required for Impounding Structures 4VAC50-20-51. Special Criteria for Certain Low Hazard Impounding Structures 4VAC50-20-54. Dam break inundation zone mapping. 4VAC50-20-320 Acceptable Design Procedures & References 4VAC50-20-330 Other Applicable Dam Safety References

IV. Discussion and Interpretation:

Owners of regulated dams must conduct dam break analyses to support hazard classification per 4VAC50-20-40.

Per 4VAC50-20-54, owners must develop dam break inundation maps via analyses meeting the Dam Safety Act and regulations for dams with High, Significant, or Low Hazard Potential.

Dam Break Analysis Modeling

A dam break analysis must be conducted by the owner’s PEOR using approved hydrologic/hydraulic models per 4VAC50-20-320, following protocols outlined in this guidance for Virginia.

1. General Hydrologic / Hydraulic Notes a. The PEOR must use standard hydrologic/hydraulic methods producing worst-case inundation limits for dam break analysis and document storm durations used.

for all watersheds modeled. During review, the Regional Engineer may request additional documentation.

(DCR-VSWCB-038) (09/18) 3

• Page 4 ---

The Regional Engineer may request additional documentation to ensure worst-case scenarios are used. Mixing criteria from different procedures is prohibited. Land use plans approved by localities must be considered in analyses.

1. Virginia PMP Implementation and Tool a. In December 2015, AWA completed a statewide PMP study for Virginia to update outdated 1970s rainfall data.

Typically derived from Army Corps of Engineers Data (2015 Virginia PMP Study), which added over 24,000 hydrologic grid points across Virginia. As of March 23, 2016, dam owners’ engineers must use Virginia’s 2015 PMP values to determine 6-, 12-, and 24-hour rainfall per 4VAC50-20-50, calculated via the PMP Evaluation GIS Tool and Watershed Calculations Spreadsheet available on the DCR website. Refer to the PMP Implementation Guidance Document for further instructions. Note that with the adoption of Virginia’s new PMP values, the use of the Army

Corps of Engineers’ (ACOE) HMR 51/52 program to develop PMP values for a watershed basin flowing to a dam in the State of Virginia is no longer permitted. d. The temporal curves from the 2018 Virginia PMP Temporal Distribution Analysis are Virginia based and developed from the 2015 Virginia PMP study. These temporal curves should be utilized to analyze the distribution for a dam's inflow drainage basin in conjunction with the PMP values from the 2015 Virginia PMP study. While the use of the NRCS TR-60 (Chapter 2, Figure 2-4) and NRCS 5-pt. distribution (24-hour only) is still permitted, it is not recommended. Please keep in mind that whatever rainfall pattern(s) are utilized by the dam owner’s professional engineer, the utilized rainfall pattern(s) must represent a physically possible scenario. e. The PEOR should not utilize an SCS Type II distribution when analyzing a dam’s inflow drainage basin (6-hour, 12-hour and 24-hour PMP values only). The use of the SCS Type II distribution may only be utilized in a Dam Failure Analysis (basin to the Dam and basins below the Dam) when analyzing events lower than the 6-hour, 12-hour, and 24-hour PMP events (100-year event or lower).

(DCR-VSWCB-038) (09/18) 4

• Page 5 ---

1. a. Per 4VAC50-20-50, the PEOR must analyze 6-, 12-, and 24-hour PMP values to identify the controlling value that produces the largest dam outflow. b. The PEOR applies each PMP to the watershed, routes flows through the dam, and compares outflows; the largest outflow indicates the controlling PMP.

1. Topographic Modeling Requirements a. Topographic information [including topographic surfaces [digital elevation model (DEM), triangular irregular network (TIN), etc.)] utilized in the development of the hydrologic / hydraulic calculations and inundation mapping for a Dam Failure Analysis should be accurate (horizontally and vertically) to a level where 5 foot contour intervals (maximum) can be depicted truthfully [PEOR cannot utilize a contour interval greater than 5 feet to aide in accuracy when analyzing potential downstream impacts at modeled cross sections (home, businesses, utilities, etc.)]. With the availability of state-wide topographic data being available [VGIN Clearing House - make sure to click on “Show ArcGIS Desktop Content” on left side of webpage, (http://vgin.maps.arcgis.com/home/search.html?q=VBMP&t=content)], the PEOR should not utilize USGS topographic information (USGS Topographic Quad sheets) when completing detailed hydrologic / hydraulic analysis and inundation mapping for a Dam Failure Analysis in the State of Virginia. b. The minimum contour elevation difference as defined above should be utilized unless prior authorization for a larger contour elevation difference is granted by the Regional

c. If topographic info is unavailable, the dam owner must provide an alternative method for identifying damage locations, approved by the DCR Regional Engineer(s) or Dam Safety staff before evaluation.

1. Hydrologic / Hydraulic Computer Modeling a. The dam owner’s professional engineer (PEOR) may utilize 1D steady state modeling, 1D unsteady state modeling, or 2D unsteady state modeling when completing the required dam break analysis in the State of Virginia [(4VAC50-20-320, FEMA P-946 (July 2013)]. b. Computer modeling should generate appropriate inflow hydrographs which are routed through the dam and downstream of the dam. Some computer models that are acceptable include HEC-1, HEC-HMS, HEC-RAS, and the NRCS computer models TR-60 with TR-66. Other computer models may be used if approved by the DCR Regional Engineer prior to submitting the results to the Division of Dam Safety and Floodplain

(DCR-VSWCB-038) (09/18) 5

• Page 6 ---

The PEOR must select appropriate methods for the dam and watershed. The computer model should extend downstream until the SDF with and without dam failure converge within one foot or to the last impacted structure from a sunny-day failure, whichever is farther downstream. DCR staff have observed models going in and out of convergence; thus, modeling should extend to the last convergence point.

1. Flow Attenuation

a. For upstream watersheds, the PMF is based on the most severe reasonably possible conditions; accounting for flow attenuation reduces peak discharge and should not be used in Dam Failure Analysis or spillway capacity calculations. b. Flow attenuation in downstream watersheds is also prohibited to prevent false merge points for PMF and SDF events. c. If large water bodies are within upstream or downstream watersheds and the PEOR wants to use their storage properties,

b. For modeling bodies other than “dams in series,” the PEOR should contact the assigned Regional Engineer to discuss the situation.

1. a. The PEOR should use inflow values up to the 100-year storm for downstream watershed modeling of PMF, SDF, and dam failure events, per 4VAC50-20-320, to avoid false convergence. b. The same storm event (≤ 100-year) must be used for all downstream watersheds; mixing storm events is prohibited.

(DCR-VSWCB-038) (09/18) 6

• Page 7 ---

c. If the SDF is ≤ the 100-year storm, the engineer should use flow values up to the 50-year storm downstream to prevent false merge points. d. If the SDF is reduced to the 50-year storm via IDA (see 4VAC50-20-52), flow values should be up to the 25-year storm downstream. e. For Sunny Day dam failure modeling, flow values up to 8% of the 100-year storm (bank full conditions) should be used downstream, depending on stream geometry.

Due to basin geometry, 8% of the 100-year flow may be too large to simulate bank full conditions. The PEOR should analyze stream geometry and use professional judgment; they may use only 6% if necessary. A reference table of allowed downstream flow values is provided below.

Required Modeling Spillway Design Flood Allowed Storm Event in Event (SDF) Downstream Watersheds Probably Maximum Flood

• Downstream Flows ≤ 100-Yr. Storm (PMF) PMF with Dam Failure - Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood SDF >100-Yr. Downstream Flows ≤ 100-Yr. Storm (SDF) SDF with Dam Failure SDF >100-Yr. Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood 50-Yr.< SDF ≤ 100-Yr. Downstream Flows ≤ 50-Yr. Storm (SDF) SDF with Dam Failure 50-Yr.< SDF ≤ 100-Yr. Downstream Flows ≤ 50-Yr. Storm Spillway Design Flood SDF = 50-Yr. (IDA) Downstream Flows ≤ 25-Yr. Storm (SDF) SDF with Dam Failure SDF = 50-Yr. (IDA) Downstream Flows ≤ 25-Yr. Storm Downstream Flows = up to 8% of Sunny Day Dam Failure -100-Yr. Storm (bank full situation)

1. Engineering Modeling Criteria a. When completing a dam break analysis, the dam owner’s PEOR shall use sanctioned engineering criteria and sound professional judgment for the worst case storm conditions in the selection of: i. Use of available topography and supporting field surveys.

II. Rainfall distributions.

(DCR-VSWCB-038) (09/18) 7

[TABLE 7-1] Required Modeling Event | Spillway Design Flood (SDF) | Allowed Storm Event in Downstream Watersheds Probably Maximum Flood (PMF) | - | Downstream Flows ≤ 100-Yr. Storm PMF with Dam Failure | - | Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood (SDF) | SDF >100-Yr. | Downstream Flows ≤ 100-Yr. Storm SDF with Dam Failure | SDF >100-Yr. | Downstream Flows ≤ 100-Yr. Storm Spillway Design Flood (SDF) | 50-Yr.< SDF ≤ 100-Yr. | Downstream Flows ≤ 50-Yr. Storm SDF with Dam Failure | 50-Yr.< SDF ≤ 100-Yr. | Downstream Flows ≤ 50-Yr. Storm Spillway Design Flood (SDF) | SDF = 50-Yr. (IDA) | Downstream Flows ≤ 25-Yr. Storm SDF with Dam Failure | SDF = 50-Yr. (IDA) | Downstream Flows ≤ 25-Yr. Storm Sunny Day Dam Failure | - | Downstream Flows = up to 8% of 100-Yr. Storm (bank full situation)

[/TABLE]

• Page 8 ---

III. Development of SCS Curve Numbers.

IV. Determination of the Time of Concentration and/or lag time values. v. Development of spillway rating curves, area-capacity curves, and stage-storage discharge curves.

VI. Flood routing procedures and coefficients.

VII. Dam failure parameters.

VIII. Evaluation of multiple dams if modeling dams in series conditions.

IX. Other steps used during the modeling and analysis of flood conditions in the watershed basin and downstream of the impounding structure.

1. 28: If the PEOR identifies potential dams in series after analysis, they should contact the

assigned Regional Engineer for the dam in question to discuss the situation. Every dam analysis is different and depending on the distance between the multiple dams, a “dams in series” situation requiring additional analysis may or may not be required. b. If the dam in question (Dam A) is located directly upstream or downstream of an already existing dam impoundment (Dam B), additional analysis may be required for a Dam Break Analysis to determine the “dams in series” impacts. As part of the analysis, the PEOR is required to look at how both Dam A and Dam B may impact each other during the required modeling events regardless of whether the dam in question is the upstream or downstream dam. c. An example of a potential scenario would be the failure of Dam A overtops the downstream Dam B and results in a failure of Dam B. In this situation, a specific scenario would need to be modeled and evaluated where the failure of both dams is taken into account when looking at the hazard classification / SDF determination for Dam A. d. After evaluating all of the potential modeling scenarios (non-failure and failure events) for the “dams in series” condition, the PEOR would be required to utilize the worst case scenarios when determining the hazard classification / SDF storm event and downstream

inundation limits.

10. Submission Requirements a. As part of the dam break analysis submission to DCR Dam Safety, it is required that all data utilized to complete the hydrologic / hydraulic calculations / mapping [computer program data and / or hand calculations (excel format, etc.)] for the analysis in question be provided in both hard copy and digital format on a CD or DVD disk. b. Please ensure the provided dam break analysis report clearly dictates all methodology and computer programs utilized to develop the hydrologic / hydraulic calculations / mapping for the submitted dam break analysis. All data provided on the CD / DVD disk should be clearly labeled (both the actual disk and data on the disk) and efficiently organized to ensure proper review by DCR Dam Safety.

Please note that the PEOR should adhere to and conduct all calculations / analyses utilizing standard engineer practices and judgements. The judgments and the engineering criteria used by the dam owner’s engineer shall be reviewed and approved by the DCR Regional Engineer(s) or DCR Dam Safety staff for appropriateness. The DCR Regional Engineer(s) or DCR Dam Safety

(DCR-VSWCB-038) (09/18) 8

• Page 9 ---

staff will provide specific guidance via written correspondence to the dam owner should the judgments or the use of the engineering criteria in conjunction with a dam break analysis be determined to be inappropriate.

Dam Break Analysis Mapping

This section requires that dam break inundation zone maps shall be provided to the Department to meet the requirements set out in Hazard Potential Classifications of Impounding Structures (4VAC50-20-40), Emergency Action Plan (EAP) for High and Significant Potential Hazard Impounding Structures (4VAC50-20-175), Dam Break Inundation Mapping (4VAC50-20-54), and Emergency Preparedness for Low Hazard Potential Impounding Structures (4VAC50-20-177), as applicable. In an effort to aid the Professional Engineer of Record (PEOR) in completing acceptable inundation / EAP maps per current DCR Dam Safety Regulations, DCR

has provided a detailed explanation of the required mapping protocol and information to be utilized with the mapping. As a result, the following mapping protocol and information should be utilized on all inundation maps submitted to DCR Dam Safety as part of a dam break analysis study:

1. 30: The PEOR must be a Virginia-licensed, in good standing, Professional Engineer with the Department of Professional & Occupational Regulation, and must sign and date the seal.

1. Inundation maps must not exceed 11’’ by 17” and be folded to 8” by 11”. If too large, include an index map showing full extent and map outlines with identifiers for emergency response.

evacuations. c. If multiple maps are indeed involved, PEOR should utilize appropriate match lines (see example in Appendix 3) within the inundation mapping to line up each sheet correctly through the proposed inundation corridor.

1. Inundation map colors and line types a. The PEOR has the choice to provide inundation mapping in either black and white or color (or a mixture of both). Please note that color maps must still be legible if copied to black & white for emergency purposes (mass copies during emergency situation(s)). b. If the inundation mapping is provided in black and white, all provided inundation limits and topographic contour lines should be portrayed with different line types or shading patterns. c. If the inundation mapping is provided in color, all provided inundation limits and topographic contours lines should be portrayed with different colors, linetypes (EAP purposes), or shading patterns.

(DCR-VSWCB-038) (09/18) 9

• Page 10 ---

d. Potential damage locations (impacted structure such as homes, businesses, roads, utilities, etc.) shall be clearly shown and if cross-hatching is used it should not obscure the structures.

1. a. If producing a color map, include an aerial image to assist review and emergencies. b. Provide origin info (location, date) if available.

1. Include inundation limits: i. SDF without dam failure.

II. SDF with dam failure III. PMF with dam failure IV. Sunny day dam failure The PEOR must ensure the inundation lines are legible and associated line work clearly identifies intended storm event.

1. a. All maps must include topographic contours used in analysis. b. Major contours should be labeled at a review-appropriate frequency. c. Contours should not have line width or color/shade matching inundation limits.

1. All cross sections used in the hydraulic study (HEC-RAS) must be shown on the map.

inundation mapping (excludes interpolated cross sections).

1. a. Include the analyzed downstream waterway alignment used in HEC-RAS. b. Stationing must be legible, accurate, and match the hydraulic model and cross sections.

1. a. Labels must be legible, with masks if needed. b. Cross sections must be labeled to match HEC-RAS. c. Roads should include route numbers. d. Waterways and water bodies must be labeled. e. Dam impoundments should be labeled. f. Convergence point between SDF and dam failure SDF must be marked.

(DCR-VSWCB-038) (09/18) 10

• Page 11 ---

10. Sheet and title bar requirements a. Accurate scale bar and north arrow b. Detailed mapping legend c. Title of study in question d. Location of study in question (County) e. Sheet title f. State dam inventory number g. Sheet number h. Date i. Map scale description j. Horizontal and vertical datum utilized for mapping purposes (i.e. NAD83, NAVD88, StatePlane Virginia South, etc.)

11. Map info for dam break mapping: include topographic data origin, aerial imagery, horizontal and vertical datum. If downstream tributaries are unmodeled, add: “Water surface elevations along tributaries draining into X are approximate, shown as backwater only, and not analyzed in this study.” Modify as needed per study specifics. Include inundation limits and flood wave times.

When preparing inundation maps, PEOR may use the same maps for both dam break study and EAP per 4VAC50-20-54. If not,

If separate EAP maps are used, they must include all dam break map info and follow the above requirements. If same maps are used, follow the same protocol (items 1-11) and add the following info:

1. Additional inundation limits a. Probable Maximum Flood without dam failure

1. a. All inundation maps for the Emergency Action Plan must include: “This map is for notifying downstream property owners by emergency personnel.” b. For evacuation, attach: “Mapping of flooded areas and flood wave travel”.

(DCR-VSWCB-038) (09/18) 11

• Page 12 ---

Times are approximate; actual inundation timing and extent may differ from map data.

1. Mark at each potential damage site: a. Closest cross section, road name/number, and downstream distance. b. Travel time in minutes for: i. SDF without dam failure ii. SDF with dam failure iii. PMF without dam failure iv. PMF with dam failure.

v. Sunny day dam failure. Record maximum water depth in feet at impact points for: i. SDF without dam failure, ii. SDF with dam failure, iii. PMF without dam failure, iv. PMF with dam failure, v. Sunny day dam failure.

Dam break analysis maps, including inundation limits, must be submitted electronically in GIS shapefile format on the correct coordinate system to DCR Dam Safety. Also, submit maps in hard copy and digital formats (PDF, JPEG, TIF) with sufficient resolution to DCR Regional Engineer. Upon approval, final

Submit electronic copies of the complete approved Dam Inundation Study (calculations, reports, maps, linework, and relevant info) to DCR Dam Safety Central Office, Attn: Mapping Coordinator, 600 East Main Street, 24th Floor, Richmond, VA 23219.

To assist PEOR, Appendix 3 includes an example dam break inundation map with EAP info. PEOR is not required to follow this format. Per 4VAC50-20-54 F.1., include a list of downstream property owners and phone numbers on or with the map for emergency reference. All submitted maps must follow the protocol and include required info for DCR Dam Safety approval.

(DCR-VSWCB-038) (09/18) 12

• Page 13 ---

Hazard Classification: Owners of regulated dams must conduct a dam break analysis to support hazard classification per 4VAC50-20-40.

Procedures for interpreting hazard classification related to modeling and mapping are in the Guidance Document on Impounding Structure Hazard Classification Procedures.

V. Adoption, Amendments, and Repeal: This document will remain in effect until rescinded or superseded.

(DCR-VSWCB-038) (09/18) 13

• Page 14 ---

Appendix 1: Applicable Virginia Authorities.

The Code of Virginia contains authorities applicable to this Guidance:

§ 10.1-604.1. Determination of hazard potential classification.

A. Hazard classification for impounding structures shall be determined by one of the following procedures: …

1. The owner may propose a hazard potential classification that shall be subject to approval by the Board. To support the proposed hazard classification, an analysis shall be conducted by the owner's engineer and shall comply with the criteria set out in the Impounding Structure Regulations (4VAC50-20). If the engineer finds that the impounding structure has a low hazard potential classification, the owner shall be eligible for general permit coverage in accordance

with § 10.1-605.3.

An impounding structure's hazard potential classification's determination shall include an analysis of those hazards created by flood and nonflood dam failures. In conducting the hazard potential classification, the Department or the owner's engineer may utilize an incremental damage analysis. When considering the failure of the impounding structure under a flood condition, such engineers shall only consider those hazards that exceed those created by the flood event.

§ 10.1-606.2. Mapping of dam break inundation zones.

A. Owners must prepare dam break inundation maps per 4VAC50-20, using existing local maps if available.

B. All maps must be filed with DCR and local authorities responsible for plat, plan approval, or zoning in the affected localities.

Zone resides. D. Owners must include all properties within the inundation zone in the dam safety EAP to ensure downstream notification during emergencies.

(DCR-VSWCB-038) (09/18) 14

• Page 15 ---

Appendix 2 Applicable Impounding Structure Regulations Authorities.

The Impounding Structure Regulations contain authorities applicable to this Guidance.

4VAC50-20-40. Hazard potential classifications of impounding structures.

A. Impounding structures shall be classified into one of three hazard categories as defined in subsection B and Table 1.

B. Hazards relate to potential loss of life or property damage downstream from failure or malfunction of the impounding structure or appurtenances. Hazard classifications are as follows:

1. High Hazard Potential: failure causes probable loss of life or serious economic damage. "Probable loss of life" includes impacts to residences, businesses, occupied structures, or major roadways. Economic damage includes buildings, facilities, utilities, major roads, railroads, personal property, and agriculture. "Major roadways" include interstates, primary highways, high-volume streets, or other high-volume roads with AADT over 400.
2. Significant Hazard Potential is defined where an impounding structure failure may cause the loss of life or appreciable economic damage. "May cause loss of life" means that impacts will occur that could cause a loss of human life, including but not limited to impacts to facilities that are frequently utilized by humans other than residences, businesses, or other occupied structures, or to secondary roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, secondary roadways, railroads, personal property, and agricultural interests. "Secondary roadways" include, but are not limited

To secondary highways, low-volume urban streets, service roads, or low-volume roads with AADT > 400 vehicles, per 4VAC50-20-45.

1. Low Hazard Potential: failure results in no expected loss of life and minimal economic damage.

C. To support the appropriate hazard potential classification, dam break analysis shall be conducted by the owner's engineer or the department in accordance with one of the following alternatives and utilizing procedures set out in 4VAC50-20-54.

1. Owners of uncertified structures or those believing downstream conditions have changed may request in writing a simplified dam break analysis to determine low hazard potential. A fee applies per analysis as per 4VAC50-20-395.

(DCR-VSWCB-038) (09/18) 15

• Page 16 ---

The department will process requests in order and aim to complete analysis within 90 days; or

1. The owner may propose a hazard potential classification that shall be subject to approval by the board. To support the proposed hazard potential classification, an analysis shall be conducted by the owner's engineer and submitted to the department. The hazard potential classification shall be certified by the owner.

D. Analysis findings under subsection C shall lead to one of the following actions:

1. If the department finds a low hazard classification per C1 analysis, the owner may qualify for general permit coverage per 4VAC50-20-103.

b. If the department finds that the impounding structure appears to have a high or significant hazard potential classification, the owner's engineer shall provide further analysis in accordance with the procedures set out in 4VAC50-20-54 and this chapter. The owner may be eligible for grant assistance from the Dam Safety, Flood Prevention and Protection Assistance Fund in accordance with Article 1.2 (§ 10.1-603.16 et seq.) of Chapter 6 of Title 10.1 of the Code of Virginia.

1. For findings by the owner's engineer resulting from analyses conducted in accordance with subdivision C 2 of this section: a. If the engineer finds that the impounding structure has a low hazard potential classification, the owner may be eligible for general permit coverage in accordance with 4VAC50-20-103; or b. If the engineer finds that the impounding structure appears to have a high or significant hazard potential classification, then the owner shall comply with the applicable certification requirements set out in this chapter.

E. An incremental damage analysis per 4VAC50-20-52 may be used for hazard classification by the owner's engineer.

F. Impounding structures shall be reclassified by the board as needed.

4VAC50-20-50. Performance Standards for Impounding Structures G. According to § 10.1-604 and 4VAC50-20-30, structures are regulated if ≥25 ft in height with ≥15 acre-feet capacity or ≥6 ft with ≥50 acre-feet capacity, unless exempt by Virginia law. Exempt structures are:

1. Structures licensed by the State Corporation Commission and subject to safety inspections.
2. Owned or licensed by the United States government;
3. Agricultural dams less than 25 feet high or with capacity under 100 acre-feet.
4. Dams approved under § 45.1-222 or 45.1-225.1 of Virginia Code.
5. Obstructions in a canal used to raise or lower water.

(DCR-VSWCB-038) (09/18) 16

• Page 17 ---

Regulated, non-exempt impounding structures must be constructed, operated, and maintained to perform as designed. Spillway capacity must safely pass the designated flood per Table 1, with hazard classification determined accordingly.

4VAC50-20-40.

TABLE 1

Impounding Structure Regulations

Applies to all impounding structures ≥25 ft with ≥15 acre-feet capacity or ≥6 ft with ≥50 acre-feet capacity, unless exempt under Virginia law.

Spillway Design Spillway Design Minimum Flood (SDF) B for Hazard Potential Flood (SDF) B Threshold for Existing Class of Dam for New Incremental Impounding Construction F Damage Analysis Structures F, G High PMF C 0.9 PMP H 100-YR D Significant 0.5 PMF 0.5 PMF 100-YR D Low 100-YR D 100-YR D 50-YR E B. The spillway design flood (SDF) represents the largest flood that need be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Reductions in the established SDF may be evaluated through the use of incremental damage analysis pursuant to 4VAC50-20-52. The SDF established for an impounding structure shall not be less than those standards established elsewhere by state law or regulations, including but not limited to the Virginia Stormwater Management Program (VSMP) Regulation (9VAC25-870). Due to potential for future development in the dam break inundation zone that would necessitate higher spillway design flood standards or other considerations, owners may find it advisable to consider a higher spillway design flood standard than is required.

C. PMF is the maximum flood from the most severe meteorologic conditions, calculated from the Virginia PMP Study (Nov 2015). Engineers must develop hydrographs for 6, 12, and 24 hours; the largest peak guides capacity. Land use must be considered.

(DCR-VSWCB-038) (09/18) 17

[TABLE 17-1] TABLE 1 Impounding Structure Regulations | | | Applicable to all impounding structures that are 25 feet or greater in height and that create a maximum impounding capacity of 15 acre-feet or greater, and to all impounding structures that are six feet or greater in height and that create a maximum impounding capacity of 50 acre-feet or greater and is not otherwise exempt from regulation by the Code of Virginia. | | | Hazard Potential Class of Dam | Spillway Design Flood (SDF) B for New Construction F | Spillway Design Flood (SDF) B for Existing Impounding Structures F, G | Minimum Threshold for Incremental Damage Analysis High | PMF C | 0.9 PMP H | 100-YR D Significant | 0.5 PMF | 0.5 PMF | 100-YR D Low | 100-YR D | 100-YR D | 50-YR E

[/TABLE]

• Page 18 ---

D. 100-Yr: 100-year flood represents the flood magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as an exceedance probability with a 1.Zero percent chance of being equaled or exceeded annually. Present and planned land-use conditions shall be considered in runoff characterization.

E. 50-Yr: The 50-year flood is expected once in 50 years, with a corresponding exceedance probability.

1. Zero percent chance of being equaled or exceeded annually. Present and planned land-use conditions shall be considered in runoff characterization.

F. Definitions of "Existing impounding structure" and "New construction" are in 4VAC50-20-30.

G. An existing high hazard impounding structure, as defined in 4VAC50-20-30, shall only be

required to pass the 0.6 PMP flood instead of 0.9 PMP SDF if owner meets 4VAC50-20-53 requirements.

H. PMP is the maximum possible rainfall depth for a storm area, derived from storm transposition. In Virginia, 0.9 PMP reflects the maximum recorded event.

4VAC50-20-51 Special Criteria for Low Hazard Structures I. If failure causes no loss of life or economic damage except owner property, the owner may follow alternative requirements.

1. No map per 4VAC50-20-54 is required if a licensed engineer certifies the impounding

The structure is a low hazard impounding structure eligible for this section;

1. The spillway design flood is recommended as a minimum 50-year flood; no specific flood is mandatory for qualifying impounding structures;
2. No emergency preparedness plan per 4VAC50-20-177 is required.

Owner shall notify local emergency services of failure or emergency at the structure;

1. Owners shall inspect the impounding structure annually per 4VAC50-20-105. No engineer inspection is required if the owner certifies conditions are unchanged since the last engineer inspection during renewal;
2. No certificate or permit fee applies to the impounding structure.

(DCR-VSWCB-038) (09/18) 18

• Page 19 ---

Owners using subsection A must comply with all other low hazard requirements of this chapter.

Owner must immediately notify the department of any change affecting qualification for this section.

4VAC50-20-54. Dam break inundation zone mapping.

D. Inundation zone maps must be provided to the department per 4VAC50-20-40, 4VAC50-20-175, and 4VAC50-20-177.

B. Map end points where dam break and spillway flood elevations converge within one foot. Maps must include water surface profiles before and after failure.

C. All inundation maps, except for low hazard emergency plans, must be signed and sealed by a licensed engineer.

D. Land use plans approved by localities in dam inundation zones must be considered for classification.

E. To determine hazard classification, the following must be provided to the department:

1. A sunny day dam break analysis using volume at the typical water surface elevation;

1. Dam break analysis using spillway design flood with dam failure;
2. Analysis using spillway design flood without dam failure; and
3. For future growth planning, dam break analysis using probable maximum flood with dam failure.

F. Owners of High and Significant hazard structures must provide dam break maps for both sunny day and spillway flood failures to meet 4VAC50-20-175.

1. Maps shall be at a scale showing downstream inhabited areas, structures, roads, utilities, and other relevant features. A list of property owners and contacts may be included or plotted for emergency reference.
2. Each map shall include: "This map is for notifying downstream property owners by emergency personnel."

(DCR-VSWCB-038) (09/18) 19

• Page 20 ---

If the department prepares a dam break map per 4VAC50-20-40, the owner shall use it to prepare a plan as required.

G. Upon request and payment per 4VAC50-20-40 and 4VAC50-20-395, the department will perform a simplified dam break analysis using an approved model, producing GIS shape maps meeting criteria.

After analysis, the department will send a letter with results, including the inundation map, hazard classification, and owner compliance instructions per § 10.1-604.

et seq.) and this chapter.

4VAC50-20-320 Acceptable Design Procedures & References To ensure consistency of approach, within the major engineering disciplines of hydrology, hydraulics, soils and foundations, structures, and general civil design, criteria and approaches from multiple sources shall not be mixed for developing the design of a given feature or facility without approval of the director. In all cases the owner's engineer shall identify the source of the criteria.

Acceptable design procedures and references include:

1. Design procedures, manuals, and criteria used by the U.S. Army Corps of Engineers.
2. Design procedures, manuals, and criteria used by USDA, Natural Resources Conservation Service.
3. Design procedures, manuals, and criteria used by DOI, Bureau of Reclamation.
4. Design procedures, manuals, and criteria used by NOAA, National Weather Service.

1. Design procedures, manuals, and criteria used by FERC.
2. Other accepted current engineering practices approved by the director prior to impoundment design.

4VAC50-20-330 Other Dam Safety References: A. FEMA manuals, guidance, and criteria, including the following:

1. Federal Guidelines for Dam Safety: Emergency Action Planning for Dam Owners, U.S.

FEMA 64, DHS, FEMA, October 1998, Reprinted January 2004, or as revised.

1. Federal Guidelines for Dam Safety: Selecting and Accommodating Inflow Design Floods, FEMA 94, DHS, October 1998, reprinted April 2004, or as revised.

B. Department-provided manuals, guidance, and forms. Materials may be located

on the department's website at: http://www.dcr.virginia.gov.

(DCR-VSWCB-038) (09/18) 20

• Page 21 ---

Appendix 3: Dam Break Analysis Inundation Map (with EAP info)

(DCR-VSWCB-038) (09/18) 21

• Page 1 ---

GUIDANCE DOCUMENT ON

CREDITS AND REFUNDS OF

DAM SAFETY CERTIFICATE

APPLICATION FEES

(Approved November 30, 2010)

Summary: This guidance document serves to clarify how a partial fee credit from an unexpired Conditional Operation and Maintenance Certificate is to be applied towards a Regular Operation and Maintenance Certificate fee as well as it outlines the refund policy for Regular Operation and Maintenance Certificate applicants that are instead issued a lower cost Conditional Operation and Maintenance Certificate.

Electronic Copy: An electronic copy of this guidance in PDF format is available on the Regulatory TownHall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Dam Safety and Floodplain Management at dam@dcr.virginia.gov or by calling 804-371-6095 with any questions regarding the application of this guidance.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for the Virginia Soil and Water Conservation Board and the Department of Conservation and Recreation that administers the program on behalf of the Board. This guidance provides a general interpretation of the applicable Code and Regulations but is not meant to be exhaustive in nature. Each situation may differ and may require additional interpretation of the Dam Safety Act and attendant regulations.

Credits and Refunds of Dam Safety Certificate Application Fees

I. Background: The Virginia Dam Safety Act, §10.1-613.5 stipulates that the Board is authorized to establish and collect application fees from any applicant. Such fees are established for six-year Regular Operation and Maintenance Certificates in accordance with 4VAC50-20-380 and for Conditional Operation and Maintenance Certificates in accordance with 4VAC50-20-390. Subsection C of 4VAC50-20-390 further specifies that “[t]he board may allow a partial credit towards the Regular Operation and Maintenance Certificate fee if the owner of the impounding structure has completed, to the director's satisfaction, the conditions of the Conditional Certificate prior to its expiration”. The regulations do not provide guidance to the Board regarding how much partial credit may be applied. As such, this guidance document shall outline the crediting approach to be utilized.

(DCR-VSWCB-021) (11/10) 1

• Page 2 ---

Additionally, an applicant may submit an application and the required fee for a Regular Operation and Maintenance Certificate. Based on a review of the application materials and the condition of the dam, the Board may issue a Conditional Operation and Maintenance Certificate instead. In this case, this guidance document instructs the Department to refund to the dam owner the difference between the two fees (note that there may be other situations requiring refunds of fees as well).

II. Definitions (pursuant to 4VAC50-20-30): "Conditional Operation and Maintenance Certificate" means a certificate required for impounding structures with deficiencies.

"Operation and Maintenance Certificate" means a certificate required for the operation and maintenance of all impounding structures.

III. Authority: The Dam Safety Act in the Code of Virginia contains the following authorities applicable to this guidance:

§ 10.1-605. Promulgation of regulations by the Board.

The Board shall promulgate regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated.

§ 10.1-613.5. Program administration fees.

The Board is authorized to establish and collect application fees from any applicant to be deposited into the Flood Prevention and Protection Assistance Fund established pursuant to § 10.1-603.17 for the administration of the dam safety program, administrative review, certifications, and the repair and maintenance of dams.

The Impounding Structure Regulations contain the following authorities applicable to this guidance:

4VAC50-20-105. Regular Operation and Maintenance Certificates.

A. A Regular Operation and Maintenance Certificate is required for an impounding structure. Such six-year certificates shall include the following based on hazard classification:

1. High Hazard Potential Regular Operation and Maintenance Certificate;

1. Significant Hazard Potential Regular Operation and Maintenance Certificate; or
2. Low Hazard Potential Regular Operation and Maintenance Certificate.

B……

4VAC50-20-150. Conditional operation and maintenance certificate.

A. During the review of any Operation and Maintenance Certificate Application (Operation and Maintenance Certificate Application for Virginia Regulated Impounding Structures) completed in accordance with 4VAC50-20-105 should the director determine that the impounding structure has nonimminent deficiencies, the director may recommend that the board issue a Conditional Operation and Maintenance Certificate.

B. The Conditional Operation and Maintenance Certificate for High, Significant, and Low Hazard Potential impounding structures shall be for a maximum term of two years. This certificate will allow the owner to continue normal operation and

(DCR-VSWCB-021) (11/10) 2

• Page 3 ---

maintenance of the impounding structure, and shall require that the owner correct the deficiencies on a schedule approved by the board.

C…..

D. Once the deficiencies are corrected, the board shall issue a Regular Operation and Maintenance Certificate based upon the impounding structure's meeting the requirements of 4VAC50-20-105.

4VAC50-20-340. Authority to establish fees.

Under § 10.1-613.5 of the Code of Virginia, the board is authorized to establish and collect application fees for the administration of the dam safety program, administrative review, certifications, and the repair and maintenance of impounding structures. The fees will be deposited into the Dam Safety, Flood Prevention and Protection Assistance Fund.

4VAC50-20-380. Regular Operation and Maintenance Certificate application fees.

E. Any application for a six-year Regular Operation and Maintenance Certificate

after September 26, 2008, except as otherwise exempted, shall be accompanied by a payment as determined in subsection B of this section.

B. Fees for High, Significant, or Low Hazard Potential impounding structures shall be as follows:

1. $600 for High Hazard Potential.
2. $600 for Significant Hazard Potential.
3. $300 for Low Hazard Potential.

C. Fees for extension of Regular Operation and Maintenance Certificates shall be $250 per year or portion thereof.

4VAC50-20-390. Conditional Operation and Maintenance Certificate application fee.

D. Fees for issuance of a Conditional Operation and Maintenance Certificate shall be as follows:

1. For a certificate for more than one year but no more than two years: $300.
2. For a certificate for one year or less: $150.

B. The fee for an extension of a Conditional Operation and Maintenance Certificate shall be $250 per year or portion thereof.

C. The board may allow a partial credit towards the Regular Operation and Maintenance Certificate fee if the owner of the impounding structure has completed, to the director's satisfaction, the conditions of the Conditional Certificate prior to its expiration.

IV. Discussion and Interpretation:

Section 4VAC50-20-390 C. of the Virginia Impounding Structure Regulations states that the Virginia Soil and Water Conservation Board (Board) may allow a partial credit towards the Regular Operation and Maintenance Certificate fee if the dam owner of the impounding structure has completed, to the director’s satisfaction, the conditions of the Conditional Operation and Maintenance Certificate prior to its expiration.

In addition, in order for a dam owner to receive partial credit of a fee paid for a Conditional Operation and Maintenance Certificate, it is required that the dam owner submit the required

(DCR-VSWCB-021) (11/10) 3

• Page 4 ---

recertification documents and appropriate full fee for a Regular Operation and Maintenance Certificate. Upon approval of the Regular Operation and Maintenance Certificate by the Board, the Department shall determine the appropriate credit and issue a refund to the dam owner.

Partial credits shall be determined in accordance with Table 1 and are based on the term of the conditional permit issued (one or two-year) as well as the number of months lapsed since issuance of the conditional permit and the approval of Regular Operation and Maintenance Certificate by the Board.

Table1: Proportion of Conditional Operation and Maintenance Certificate Application Fee Applicable for Partial Credit Towards a Regular Operation and Maintenance Certificate

One-Year Cert.: # of Cond. Cert. Amt. Two- Year Cert.: No. Cond. Cert Amt.

Months Lapsed Applied To Reg. Months Lapsed Applied To Reg.

Between Conditional Cert. Between Conditional Cert. and Regular Certificate and Regular Certificate

Issuance Issuance (original fee) 150 (original fee) 300 2 125 2 275 4 100 4 250 6 75 6 225 8 50 8 200 10 25 10 175 12 150 14 125 16 100

18 75 20 50 22 25 NOTE: For any month of the Conditional Operation and Maintenance Certificate cycle not listed, the next higher number of months will be used to determine the amount to be applied (for example, if nine months of a one-year certificate have lapsed, the amount applied would be $25).

Additionally, should an applicant submit an application and the required fee for a Regular Operation and Maintenance Certificate to the Department for review, and based on the review of the application materials and the condition of the dam the Board determines that a Conditional Operation and Maintenance Certificate should be issued instead, the Department shall refund to the dam owner the difference between the two fees.

V. Adoption, Amendments, and Repeal: This document will remain in effect until rescinded or superseded.

_______________________________________________ November 30, 2010 David A. Johnson Date Director, Department of Conservation and Recreation

(DCR-VSWCB-021) (11/10) 4

[TABLE 4-1] One-YearCert.: #of Months Lapsed BetweenConditional andRegularCertificate Issuance | Cond.Cert.Amt.

Applied ToReg.

Cert. | | | | Two-YearCert.: No.

Months Lapsed BetweenConditional andRegularCertificate Issuance | Cond.Cert Amt.

AppliedToReg.

Cert. (original fee) | 150 | | | | (original fee) | 300 2 | 125 | | | | 2 | 275 4 | 100 | | | | 4 | 250 6 | 75 | | | | 6 | 225 8 | 50 | | | | 8 | 200 10 | 25 | | | | 10 | 175 | | | | | 12 | 150 | | | | | 14 | 125 | | | | | 16 | 100 | | | | | 18 | 75 | | | | | 20 | 50 | | | | | 22 | 25

[/TABLE]

• Page 1 ---

GUIDANCE DOCUMENT ON

CREDITS AND REFUNDS OF

DAM SAFETY CERTIFICATE

APPLICATION FEES

(Approved November 30, 2010)

This guidance clarifies applying partial fee credits from unexpired Conditional Certificates to Regular Certificates and outlines refund policies for lower-cost Conditional Certificates.

Electronic Copy: An electronic PDF of this guidance is available on the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Contact the Department of Conservation and Recreation’s Division of Dam Safety and Floodplain Management at dam@dcr.virginia.gov or 804-371-6095 for questions about this guidance.

Disclaimer: This guidance sets forth standard procedures for the Virginia Soil and Water Conservation Board and DCR, offering general interpretation of applicable laws; individual cases may need further interpretation.

Credits and Refunds of Dam Safety Fees

I. Background: The Virginia Dam Safety Act, §10.1-613.5 stipulates that the Board is authorized to establish and collect application fees from any applicant. Such fees are established for six-year Regular Operation and Maintenance Certificates in accordance with 4VAC50-20-380 and for Conditional Operation and Maintenance Certificates in accordance with 4VAC50-20-390. Subsection C of 4VAC50-20-390 further specifies that “[t]he board may allow a partial credit towards the Regular Operation and Maintenance Certificate fee if the owner of the impounding structure has completed, to the director's satisfaction, the conditions of the Conditional Certificate prior to its expiration”. The regulations do not provide guidance to the Board regarding how much partial credit may be applied. As such, this guidance document shall outline the crediting approach to be utilized.

(DCR-VSWCB-021) (11/10) 1

• Page 2 ---

Applicants may submit a fee for a Regular Certificate; the Board may issue a Conditional Certificate based on review, and this guidance instructs refunds of the fee difference, among other situations.

II. Definitions (4VAC50-20-30): "Conditional Operation and Maintenance Certificate" is for impounding structures with deficiencies.

"Operation and Maintenance Certificate" is required for all impounding structures' operation and maintenance.

III. Authority: The Virginia Dam Safety Act provides authorities applicable to this guidance:

§ 10.1-605. Promulgation of regulations by the Board.

The Board shall promulgate regulations to ensure impounding structures are properly constructed, maintained, and operated.

§ 10.1-613.5. Program administration fees.

The Board may establish and collect application fees for the Flood Prevention and Protection Assistance Fund (§ 10.1-603.17) for dam safety, review, certifications, and repairs.

The Impounding Structure Regulations contain authorities applicable to this guidance:

4VAC50-20-105. Regular Operation and Maintenance Certificates.

A. A six-year Regular Operation and Maintenance Certificate is required for impounding structures, with details based on hazard classification:

1. High Hazard Potential Regular Operation and Maintenance Certificate;

1. Significant Hazard Potential Regular Operation and Maintenance Certificate; or
2. Low Hazard Potential Regular Operation and Maintenance Certificate.

B……

4VAC50-20-150. Conditional operation and maintenance certificate.

A. During review of any application per 4VAC50-20-105, if the director finds nonimminent deficiencies, they may recommend issuing a Conditional Certificate.

B. The Conditional Certificate for high, significant, and low hazard structures is valid for up to two years, allowing continued operation and

(DCR-VSWCB-021) (11/10) 2

• Page 3 ---

maintenance, requiring the owner to correct deficiencies on an approved schedule.

C…..

D. Once the deficiencies are corrected, the board shall issue a Regular Operation and Maintenance Certificate based upon the impounding structure's meeting the requirements of 4VAC50-20-105.

4VAC50-20-340. Authority to establish fees.

Under § 10.1-613.5, the Board may establish and collect fees for dam safety, review, certifications, and repairs, deposited into the Dam Safety Fund.

4VAC50-20-380: Regular Certificate application fees.

E. Applications for a six-year Regular Certificate

after September 26, 2008, must include a payment as per subsection B, unless exempted.

B. Fees for High, Significant, or Low Hazard Potential impounding structures shall be as follows:

1. $600 for High Hazard Potential.
2. $600 for Significant Hazard Potential.
3. $300 for Low Hazard Potential.

C. Extension fees for Regular Certificates are $250 per year or part.

4VAC50-20-390: Conditional Certificate application fee.

D. Fees for issuing a Conditional Operation and Maintenance Certificate are as follows:

1. For a certificate exceeding one year but up to two years: $300.
2. For a certificate for one year or less: $150.

B. Extension fees for Conditional Certificates are $250 per year or part.

C. The board may grant partial credit toward the Regular Operation and Maintenance Certificate fee if the impounding structure owner completes, to the director's satisfaction, the Conditional Certificate conditions before expiration.

IV. Discussion and Interpretation:

Virginia Impounding Structure Regulations 4VAC50-20-390 C. states the Board may grant partial credit toward the Regular Operation and Maintenance Certificate fee if the dam owner completes, to the director’s satisfaction, the Conditional Certificate conditions before expiration.

To receive partial credit for a Conditional Operation and Maintenance Certificate fee, the dam owner must submit the required

(DCR-VSWCB-021) (11/10) 3

• Page 4 ---

recertification documents and the full fee for a Regular Operation and Maintenance Certificate. After Board approval, the Department will determine the credit and refund the dam owner.

Partial credits, per Table 1, depend on the conditional permit term (one or two years) and months elapsed since issuance and Board approval of the Regular Certificate.

Table 1: Proportion of Conditional Certificate Application Fee for Partial Credit toward a Regular Certificate

One-Year Cert.: # of Cond. Cert. Amt. Two- Year Cert.: No. Cond. Cert Amt.

Months Lapsed Applied To Reg. Months Lapsed Applied To Reg.

Between Conditional Cert. Between Conditional Cert. and Regular Certificate and Regular Certificate

Issuance Issuance (original fee) 150 (original fee) 300 2 125 2 275 4 100 4 250 6 75 6 225 8 50 8 200 10 25 10 175 12 150 14 125 16 100

18 75 20 50 22 25 NOTE: For any month of the Conditional Operation and Maintenance Certificate cycle not listed, the next higher number of months will be used to determine the amount to be applied (for example, if nine months of a one-year certificate have lapsed, the amount applied would be $25).

If an applicant submits a fee for a Regular Certificate, but the Board issues a Conditional Certificate instead, the Department will refund the fee difference.

V. Adoption, Amendments, and Repeal: This document remains until rescinded or superseded.

_______________________________________________ November 30, 2010 David A. Johnson Date Director, Department of Conservation and Recreation

(DCR-VSWCB-021) (11/10) 4

[TABLE 4-1] One-YearCert.: #of Months Lapsed BetweenConditional andRegularCertificate Issuance | Cond.Cert.Amt.

Applied ToReg.

Cert. | | | | Two-YearCert.: No.

Months Lapsed BetweenConditional andRegularCertificate Issuance | Cond.Cert Amt.

AppliedToReg.

Cert. (original fee) | 150 | | | | (original fee) | 300 2 | 125 | | | | 2 | 275 4 | 100 | | | | 4 | 250 6 | 75 | | | | 6 | 225 8 | 50 | | | | 8 | 200 10 | 25 | | | | 10 | 175 | | | | | 12 | 150 | | | | | 14 | 125 | | | | | 16 | 100 | | | | | 18 | 75 | | | | | 20 | 50 | | | | | 22 | 25

[/TABLE]

• Page 1 ---

VIRGINIA SOIL AND

WATER CONSERVATION

BOARD GUIDANCE

DOCUMENT ON THE

METHODOLOGY FOR

IDENTIFYING PERENNIAL

STREAMS

(Approved December 16, 2020)

Summary: This guidance document provides guidance to agricultural producers on the methodology the Board and the Department will utilize to identify perennial streams for the purpose of ensuring compliance with §62.1-44.123 of the Code of Virginia.

Electronic Copy: An electronic copy of this guidance in PDF format is available on the Regulatory TownHall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Soil and Water

Conservation by calling 804.225.3653 with any questions regarding the application of this guidance.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for the Department of Conservation and Recreation in administering the responsibilities established in §62.1-44.123 on behalf of the Virginia Soil and Water Conservation Board (Board). This guidance provides a general interpretation of the applicable Code and Regulations but is not meant to be exhaustive in nature. Each situation may differ and may require additional interpretation. This is not intended to and cannot be relied on to create any rights, substantive or procedural, on the part of any person or entity.

Methodology to Identify Perennial Streams

I. Authority:

The Code of Virginia, §62.1-44.123, states:

“Any person who owns property in the Chesapeake Bay watershed on which 20 or more bovines are pastured shall install and maintain stream exclusion practices sufficient to exclude all such bovines from any perennial stream in the watershed.”

(DCR-VSWCB-047) (12/20) 1

• Page 2 ---

The Code of Virginia, §62.1-44.119.1, establishes a delayed effective date for the implementation requirements of §62.1-44.123. Section 62.1-44.119.1 states:

The provisions of this chapter shall not become effective unless, on or after July 1, 2026, the Secretary of Agriculture and Forestry and the Secretary of Natural Resources jointly determine that the Commonwealth's commitments in the Chesapeake Bay Total Maximum Daily Load Phase III Watershed Implementation Plan have not been satisfied by a combination of agricultural best management conservation practices, including the coverage of a sufficient portion of Chesapeake Bay cropland by nutrient management plans or the installation of a sufficient number of livestock stream exclusion practices.

The fifth enactment clause in both Chapters 1185 and 1186 of the 2020 Acts of Assembly requires the Board to adopt a methodology to be used for identifying perennial streams no later than December 31, 2020.

1. That the Virginia Soil and Water Conservation Board, as established pursuant to § 10.1-502 of the Code of Virginia, shall establish, no later than December 31, 2020, the

methodology for identifying perennial streams, as defined in § 62.1-44.122 of the Code of Virginia, as created by this act.

II. Definitions:

Board means the Virginia Soil and Water Conservation Board

Department means the Virginia Department of Conservation and Recreation, Division of Soil and Water Conservation

Intermittent stream means a body of water flowing in a natural or manmade channel that contains water for only part of the year. During the dry season and periods of drought, these streams will not exhibit flow.

Perennial stream, as defined by §62.1-44.122, means a body of water depicted as perennial on the most recent U.S. Geological Survey 7-1/2-minute topographic quadrangle map (scale

1:24,000) or identified by a method, established in guidelines approved by the Department, that does not require field verification.. For the method, perennial stream means a body of water that flows in a natural or manmade channel year-round during a year of normal precipitation.

III. Discussion and Interpretation

Utilizing information from several existing individual datasets, a new dataset will be developed to identify the perennial stream segments in Virginia’s portion of the Chesapeake Bay Watershed (watershed). Reference datasets that will be used to develop this new perennial dataset include: The Virginia Information Technology Agency’s (VITA) Virginia LIDAR dataset, which is available for the entire watershed and, in many instances, contains multiple years of data for certain locations;

(DCR-VSWCB-047) (12/20) 2

• Page 3 ---

• SSURGO dataset that includes information about soils as collected by the National Cooperative Soil Survey over the course of a century;
• 2002 VGIN-created stream network (derived from digital elevation models (DEMs)); and
• The United States Geological Survey’s National Hydrography Dataset (NHD).

Process to develop base dataset of stream segments

Due to the spatial inaccuracy of existing spatial databases representing hydrology, it is necessary to create new lines that represent the center of stream channels. A precise representation of the

location of the stream channel is necessary to assist with determining compliance with §62.1-44.123.

VITA’s Virginia LIDAR data is the primary base data layer used to create the dataset. The LIDAR dataset is used to create precise digital elevation models (DEMs). The DEMs are then used to create the general stream features across the watershed. Aerial imagery base maps and the Virginia HUC features map are also included to create this initial stream feature layer.

To further refine the initial stream feature layer, the DEMs are used to model hydrologic processes including the accumulation of water and the direction of the flow of water. As there may be regional variations in the effectiveness of this process, quality control testing is conducted to ensure that the results accurately reflect the actual hydrology in each region. The stream features are then subdivided into smaller segments and these smaller segments are reviewed for perennial identification.

Identifying perennial stream segments from the base dataset

Reference datasets provide additional information for each stream segment and assist with the identification of whether a segment is perennial or intermittent. Each stream segment will have information overlaid from the reference datasets to provide additional details that may impact that segment’s identification.

There are three reference datasets that are utilized to identify a stream segment as perennial.

1. The SSURGO individual soil classifications is used to examine whether wet or flooded soils are present in a certain stream segment.
2. To account for the impacts of a year with low rainfall on a stream segment, a dataset of water features developed by VGIN from data collected in 2002 is used. There was a severe drought statewide during 2002, therefore, a stream segment included in this dataset has a high likelihood of being perennial.
3. The NHD dataset contains information indicating potential water flow through stream segments; this information can be used to assist with the identification of segments in the

new base datasets that are likely to be perennial. This dataset’s resolution is not the same scale as the new base stream segment dataset; therefore, a larger search threshold is used for comparison of NHD features with the new base dataset.

(DCR-VSWCB-047) (12/20) 3

• Page 4 ---

As each of the reference datasets contain different characteristics of a perennial stream segment, a segment will only be identified as perennial when two of the three reference datasets contain perennial characteristics for that segment.

Quality control for the final dataset

Once stream segments are identified as perennial or intermittent, several quality control processes are undertaken to ensure the integrity of the final dataset including the use of tools to check the processing of all connected features in the dataset. As an example of such processes, stream segments are reviewed to ensure all segments upstream of an intermittent feature are similarly identified as intermittent. For each hydrologic area (12-digit HUC codes), four segments will be sampled to ensure the identification of those segments is accurate. Each segment is examined to confirm the correct reference dataset information has been utilized as

well.

Additionally, the four segments are evaluated against aerial imagery for certain characteristics of perennial stream segments. This evaluation looks for the presence of a stream bed and bank (which is indicative of perennial water flow); stream sinuosity (streams with low channel slope gradients will typically show high sinuosity if the stream is perennial); and the appearance of riffles or pools (these repeated combinations can be observed readily in perennial streams).

Additional efforts will be made to review the final dataset for any discrepancies that may be related to karst topography as part of the quality control process.

IV. Moving Forward

Access to the final dataset of stream segments

Once the final dataset of stream segments for the watershed has been developed, including the completion of all the necessary quality control checks, the Department will provide public access to the dataset on its website.

Previous regulatory determination of stream segments

If a previous regulatory determination has been made regarding the perenniality of a stream segment (such as a perennial stream determination made by a locality under the authority provided by the Chesapeake Bay Preservation Act) and the determination conflicts with the identification made by using this guidance, the Board will recognize the previous regulatory determination, provided proof of the determination is available. Additionally, nothing in this guidance or corresponding provisions shall supersede the requirements under other laws or programs of the Commonwealth including those requirements under the Chesapeake Bay Preservation Act. This guidance is solely for the purpose of implementing the requirement identified under the Code of Virginia, §62.1-44.123.

(DCR-VSWCB-047) (12/20) 4

• Page 5 ---

V. Adoption, Amendments, and Repeal: This document shall remain in effect until rescinded or superseded.

(DCR-VSWCB-047) (12/20) 5

• Page 6 ---

Appendix 1 Applicable Code of Virginia Authorities.

The Code of Virginia contains the following authorities applicable to this Guidance:

§ 62.1-44.119:1. Effective date.

The provisions of this chapter shall not become effective unless, on or after July 1, 2026, the Secretary of Agriculture and Forestry and the Secretary of Natural Resources jointly determine that the Commonwealth's commitments in the Chesapeake Bay Total Maximum Daily Load Phase III Watershed Implementation Plan have not been satisfied by a combination of agricultural best management conservation practices, including the coverage of a sufficient portion of Chesapeake Bay cropland by nutrient management plans or the installation of a sufficient number of livestock stream exclusion practices.

§ 62.1-44.123. (For contingent effective date, see § 62.1-44.119:1) Bovine livestock stream exclusion.

Any person who owns property in the Chesapeake Bay watershed on which 20 or more bovines are pastured shall install and maintain stream exclusion practices sufficient to exclude all such

bovines from any perennial stream in the watershed.

(DCR-VSWCB-047) (12/20) 6

• Page 1 ---

VIRGINIA SOIL AND

WATER CONSERVATION

BOARD GUIDANCE

DOCUMENT ON THE

METHODOLOGY FOR

IDENTIFYING PERENNIAL

STREAMS

(Approved December 16, 2020)

This guidance explains how the Board and Department will identify perennial streams to ensure compliance with §62.1-44.123 of the Virginia Code.

Electronic Copy: An electronic PDF of this guidance is available on the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Soil and Water

Call 804.225.3653 with questions about this guidance.

This guidance sets standard procedures for the Department in administering responsibilities under §62.1-44.123 for the Virginia Soil and Water Conservation Board. It offers general interpretation but is not exhaustive and does not create rights.

Methodology to Identify Perennial Streams

I. Authority:

The Code of Virginia, §62.1-44.123, states:

“Any owner in the Chesapeake Bay watershed with 20+ bovines must install and maintain stream exclusion practices to exclude all such bovines from any perennial stream in the watershed.”

(DCR-VSWCB-047) (12/20) 1

• Page 2 ---

Virginia Code §62.1-44.119.1 delays the effective date of §62.1-44.123; Section 62.1-44.119.1 states:

The provisions of this chapter shall not become effective unless, on or after July 1, 2026, the Secretary of Agriculture and Forestry and the Secretary of Natural Resources jointly determine that the Commonwealth's commitments in the Chesapeake Bay Total Maximum Daily Load Phase III Watershed Implementation Plan have not been satisfied by a combination of agricultural best management conservation practices, including the coverage of a sufficient portion of Chesapeake Bay cropland by nutrient management plans or the installation of a sufficient number of livestock stream exclusion practices.

Chapters 1185 and 1186 of the 2020 Acts require the Board to adopt a perennial stream identification methodology by December 31, 2020.

1. The Virginia Soil and Water Conservation Board, established under § 10.1-502 of the Code of Virginia, shall establish by December 31, 2020, the

Methodology for identifying perennial streams, as defined in §62.1-44.122, created by this act.

II. Definitions:

Board means the Virginia Soil and Water Conservation Board

Department means the Virginia Department of Conservation and Recreation, Division of Soil and Water Conservation

Intermittent stream: a water body in a channel that flows part of the year; during droughts, it may not flow.

Perennial stream, per §62.1-44.122, is shown as perennial on the latest USGS 7.5-minute topo map (scale

1:24,000) or identified by Department-approved methods not requiring field verification; a perennial stream flows year-round during normal precipitation.

III. Discussion and Interpretation

Using multiple datasets, a new dataset will identify perennial stream segments in Virginia’s Chesapeake Bay Watershed, including VITA’s Virginia LIDAR data, which covers the entire watershed and multiple years.

(DCR-VSWCB-047) (12/20) 2

• Page 3 ---

• SSURGO dataset containing soils data collected by the National Cooperative Soil Survey over a century;
• 2002 VGIN-created stream network (derived from digital elevation models (DEMs)); and
• The USGS National Hydrography Dataset (NHD).

Process for Developing Base Stream Dataset

Because existing hydrology databases are spatially inaccurate, new lines representing stream centers must be created. Precise representation of the

stream channel location is needed to determine compliance with §62.1-44.123

VITA’s LIDAR data is used to create DEMs, which generate general stream features across the watershed, supplemented by aerial imagery and Virginia HUC maps.

DEM-based hydrologic modeling refines stream features, with quality control to ensure accuracy; segments are subdivided and reviewed for perennial status.

Identifying Perennial Stream Segments

Reference datasets add info to each segment, aiding in identifying whether it is perennial or intermittent.

Three reference datasets are used to identify perennial segments.

1. SSURGO soil classifications are used to determine wet or flooded soils in stream segments.
2. To account for low rainfall impacts, VGIN’s 2002 water features dataset is used; due to statewide drought, included stream segments likely are perennial.
3. The NHD dataset indicates potential water flow in stream segments, aiding in segment identification.

New base datasets likely to be perennial; due to differing resolution, a larger search threshold is used for NHD comparison.

(DCR-VSWCB-047) (12/20) 3

• Page 4 ---

A segment is perennial if at least two of the three reference datasets show perennial traits.

Quality control for the final dataset

Once stream segments are identified as perennial or intermittent, quality control processes ensure dataset integrity, including tools to check connected features and review segments upstream of intermittent features. Four segments per hydrologic area (12-digit HUC) are sampled for accuracy, and each segment is examined to confirm correct reference dataset information.

well.

Additionally, the four segments are evaluated against aerial imagery for perennial stream characteristics, including stream bed and bank presence, sinuosity (high in perennial streams with low slope), and riffles or pools.

Additional review of the final dataset will address discrepancies related to karst topography as part of quality control.

IV. Moving Forward

Access to the final dataset of stream segments

Once the watershed stream segment dataset is developed and quality checks are complete, the Department will publish it on its website.

Previous regulatory determination of stream segments

If a previous regulatory determination has been made regarding the perenniality of a stream segment (such as a perennial stream determination made by a locality under the authority provided by the Chesapeake Bay Preservation Act) and the determination conflicts with the identification made by using this guidance, the Board will recognize the previous regulatory determination, provided proof of the determination is available. Additionally, nothing in this guidance or corresponding provisions shall supersede the requirements under other laws or programs of the Commonwealth including those requirements under the Chesapeake Bay Preservation Act. This guidance is solely for the purpose of implementing the requirement identified under the Code of Virginia, §62.1-44.123.

(DCR-VSWCB-047) (12/20) 4

• Page 5 ---

V. Adoption, Amendments, and Repeal: This document shall remain in effect until rescinded or superseded.

(DCR-VSWCB-047) (12/20) 5

• Page 6 ---

Appendix 1 Applicable Code of Virginia Authorities.

The Code of Virginia contains authorities applicable to this Guidance:

§ 62.1-44.119:1. Effective date.

The provisions of this chapter shall not become effective unless, on or after July 1, 2026, the Secretary of Agriculture and Forestry and the Secretary of Natural Resources jointly determine that the Commonwealth's commitments in the Chesapeake Bay Total Maximum Daily Load Phase III Watershed Implementation Plan have not been satisfied by a combination of agricultural best management conservation practices, including the coverage of a sufficient portion of Chesapeake Bay cropland by nutrient management plans or the installation of a sufficient number of livestock stream exclusion practices.

§ 62.1-44.123. (For contingent effective date, see § 62.1-44.119:1) Bovine livestock stream exclusion.

Any person who owns property in the Chesapeake Bay watershed on which 20 or more bovines are pastured shall install and maintain stream exclusion practices sufficient to exclude all such

bovines from any perennial stream in the watershed.

(DCR-VSWCB-047) (12/20) 6

• Page 1 ---

GUIDANCE DOCUMENT ON

ROADWAYS ON OR BELOW

IMPOUNDING STRUCTURES

(Approved November 30, 2010) Summary: This guidance document specifies the decision process to be utilized in determining the hazard potential classification of an impounding structure solely based on the presence of a roadway(s) on or below the impounding structure.

Electronic Copy: An electronic copy of this guidance in PDF format is available on the Regulatory TownHall under the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Dam Safety and

Floodplain Management at dam@dcr.virginia.gov or by calling 804-371-6095 with any questions regarding the application of this guidance.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for the Department of Conservation and Recreation in administering the Dam Safety Program on behalf of the Virginia Soil and Water Conservation Board. This guidance provides a general interpretation of the applicable Code and Regulations but is not meant to be exhaustive in nature.

Each situation may differ and may require additional interpretation of the Dam Safety Act and attendant regulations.

Roadways On or Below Impounding Structures

I. Background: Section 4VAC50-20-40 of the Impounding Structure Regulations specifies that hazard potential classification of an impounding structure is dependant on the potential loss of human life or damage to the property of others downstream from the impounding structure in event of failure or faulty operation of the impounding structure or appurtenant facilities. In addition to direct

impacts on human life, the classifications are also dependant on impacts to residences, businesses, other occupied structures, or roadways in the dam break inundation zone. In many cases, the existence of roadways and the volume of use of such roadways has an impact on the classification of the impounding structure. This guidance serves to clarify what roadways may trigger a classification of an impounding structure as high, significant, or low hazard potential.

II. Definitions (pursuant to § 10.1-604 and 4VAC50-20-30): "Dam break inundation zone" means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

(DCR-VSWCB-023) (11/10) 1

• Page 2 ---

III. Authority: The Dam Safety Act in the Code of Virginia contains the following authorities applicable to this guidance:

§ 10.1-605. Promulgation of regulations by the Board.

A. The Board shall promulgate regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated…..

C. The Board shall consider the impact of limited-use or private roadways with low traffic volume and low public safety risk that are downstream from or across an impounding structure in the determination of the hazard potential classification of an impounding structure.

The Impounding Structure Regulations contain the following authorities applicable to this guidance:

4VAC50-20-40. Hazard potential classifications of impounding structures.

A. Impounding structures shall be classified in one of three hazard classifications as defined in subsection B of this section and Table 1.

B. For the purpose of this chapter, hazards pertain to potential loss of human life or damage to the property of others downstream from the impounding structure in event of failure or faulty operation of the impounding structure or appurtenant facilities.

Hazard potential classifications of impounding structures are as follows:

1. High Hazard Potential is defined where an impounding structure failure will cause probable loss of life or serious economic damage. "Probable loss of life" means that impacts will occur that are likely to cause a loss of human life, including but not limited to impacts to residences, businesses, other occupied structures, or major roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, major roadways, railroads, personal property, and agricultural interests. "Major roadways" include, but are not limited to, interstates, primary highways, high-volume urban streets, or other high-volume roadways.

1. Significant Hazard Potential is defined where an impounding structure failure may cause the loss of life or appreciable economic damage. "May cause loss of life" means that impacts will occur that could cause a loss of human life, including but not limited to impacts to facilities that are frequently utilized by humans other than residences, businesses, or other occupied structures, or to secondary roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, secondary roadways, railroads, personal property, and agricultural interests. "Secondary roadways" include, but are not limited to, secondary highways, low-volume urban streets, service roads, or other low-volume roadways.
2. Low Hazard Potential is defined where an impounding structure failure would result in no expected loss of life and would cause no more than minimal economic damage. "No expected loss of life" means no loss of human life is anticipated.

C. The hazard potential classification shall be proposed by the owner and shall be subject to approval by the board. To support the appropriate hazard classification, dam

(DCR-VSWCB-023) (11/10) 2

• Page 3 ---

break analysis shall be conducted by the owner's engineer. Present and planned land-use for which a development plan has been officially approved by the locality in the dam break inundation zones downstream from the impounding structure shall be considered in determining the classification.

D. Impounding structures shall be subject to reclassification by the board as necessary.

IV. Discussion and Interpretation:

In accordance with Section 4VAC50-20-40 of the Impounding Structure Regulations, the hazard potential classification of an impounding structure is dependant on the potential loss of human life or damage to the property of others downstream from the impounding structure in event of failure or faulty operation of the impounding structure or appurtenant facilities. Among the downstream factors to be considered in determining the hazard potential classification of an impounding structure are impacts on downstream public and private roadways (including roadways across dams).

Determination of an “impact”

All impacted public and private roadways shall be considered in determining hazard potential classification. For the purposes of the Regulations, the determination as to whether a road will be “impacted” by a dam failure may be evaluated in accordance with any one of the following criteria.

The choice as to the criteria to be utilized is within the discretion of the dam owner’s professional engineer:

1. First, the approach to roadways outlined in Section IV, Part D of the United States Department of the Interior, Bureau of Reclamation’s ACER Technical Memorandum No. 11 (available from Dam Safety) may be generally utilized. An impact shall be deemed to occur where there are one or more “lives-in-jeopardy” as a result of a dam failure; or
2. Second, an approach to determining impacts to roadways found in any document that is an acceptable reference pursuant to 4VAC50-20-320 may be utilized. The owner’s engineer must reference any methodology utilized; or
3. Third, any roadway that would be overtopped (at any depth) by a dam failure under any flood condition (probable maximum flood, spillway design flood, or sunny day) may be considered to be impacted.

Classification based upon roadway type and/or traffic volume

Once it is determined that a roadway is impacted, classification of an impounding structure based solely upon potential impacts to roadways depends upon roadway type and/or traffic volume.

Considerations for roadway type and/or traffic volume are as follows.

For purposes of determining traffic volumes, the average annual daily traffic (AADT) volumes available in the most recent published Daily Traffic Volume Estimates from the Virginia Department of Transportation for the road segment nearest the impounding structure shall be

utilized. This information is available from VDOT at http://www.virginiadot.org/info/ct-TrafficCounts.asp. Data developed by a local government may be utilized where the locality

(DCR-VSWCB-023) (11/10) 3

• Page 4 ---

conducts its own traffic counts. Where AADT volumes are not available from VDOT or a locality, an Average Daily Traffic trip rate that meets the standards set forth in the most recent Institute for Traffic Engineers (ITE) ITE Trip Generation information report (available for ordering online at http://www.ite.org/tripgen/trippubs.asp) may be utilized if practicable. In all cases, average daily traffic volumes may also be established by a traffic count that meets VDOT standards and is conducted or overseen by the owner’s engineer or otherwise approved by the Regional Engineer.

High hazard impounding structures are those that may impact “major roadways”. “Major roadways” include, but are not limited to, interstates, primary highways, high-volume urban streets, or other high-volume roadways generally in accordance with VDOT designations. “Interstates” and “primary highways” include those roadways given these designations by VDOT, except that any so designated roadway having an AADT volume of 400 vehicles or less is not required to be considered an “interstate” or “primary highway”. The terms “high-volume

urban streets” and “other high-volume roadways” are to be defined in the sound judgment of the owner’s engineer.

Significant hazard impounding structures are those that may impact “secondary roadways”. “Secondary roadways” include, but are not limited to, secondary highways, low-volume urban streets, service roads, or other low-volume roadways generally in accordance with VDOT designations. These roadways include those designated by VDOT as secondary roadways and other public and private roadways that are not “interstates”, “primary highways”, high volume urban streets”, or “other high-volume roadways”, but do not include those roadways that qualify as “limited use roadways” (ie those having an AADT volume of 400 vehicles or less) as defined below.

Low hazard potential is defined as where an impounding structure failure would result in no expected loss of life and would cause no more than minimal economic damage. In certain cases, an impounding structure may qualify for low hazard potential classification in spite of a potential impact to a downstream public or private roadway, provided that other factors (such as downstream residences, businesses, or other concerns as set forth in the Regulations) that would

raise the hazard potential classification do not exist. Where it can be demonstrated that a public or private roadway has a limited usage, the roadway may be considered to be “limited use” and the impounding structure may be considered a low hazard potential impounding structure despite the presence of the roadway. Such roadways, located either across or below an impounding structure, include those that result in an AADT volume of 400 vehicles or less. Although a roadway may be considered to have a “limited use”, the Emergency Preparedness Plan for the low hazard impounding structure shall also clearly outline a reliable and timely approach for notification of the proper local emergency services by the dam owner regarding the hazards of continued use of the road during an emergency condition. Finally, in situations where multiple limited use roadways would be impacted by an impounding structure failure, the traffic volumes of those limited use roadways shall be combined for the purposes of determining the impounding structure’s hazard potential classification unless it can be demonstrated that the traffic using each of the roadways is composed of substantially the same vehicle trips, such that the combined number of individual vehicle trips utilizing all of the roadways would result in an AADT of 400 or less. For example, where two secondary roadways would be impacted by an impounding

(DCR-VSWCB-023) (11/10) 4

• Page 5 ---

structure failure and each have an AADT volume of 300 individual vehicle trips, the total AADT volume to be utilized in determining hazard potential classification is 600 vehicles, and the impounding structure would be considered a significant hazard potential. Conversely, where two roadways would be impacted by an impounding structure failure and each have an AADT volume of 150, the total AADT volume to be utilized is 300, and the impounding structure may be considered a low hazard potential so long as other downstream factors would not raise the hazard potential.

Finally, it is of note that the incremental damage analysis permitted in 4VAC50-20-52 remains available for use. While the incremental damage analysis may not be used to reduce hazard potential classification, it may be used to adjust the spillway design flood requirement.

V. Adoption, Amendments, and Repeal: This document will remain in effect until rescinded or superseded.

_______________________________________________ November 30, 2010 David A. Johnson Date Director, Department of Conservation and Recreation

(DCR-VSWCB-023) (11/10) 5

• Page 1 ---

GUIDANCE DOCUMENT ON

ROADWAYS ON OR BELOW

IMPOUNDING STRUCTURES

(Approved November 30, 2010) Summary: This guidance details the process for classifying impounding structures' hazard potential based solely on the presence of roadways on or below the structure.

Electronic Copy: This guidance PDF is available on the Virginia Soil and Water Conservation Board at http://townhall.virginia.gov/L/GDocs.cfm.

Contact Information: Please contact the Department of Conservation and Recreation’s Division of Dam Safety and

Floodplain Management at dam@dcr.virginia.gov or call 804-371-6095 for questions about this guidance.

Disclaimer: This guidance sets standard procedures for the Department of Conservation and Recreation in administering the Dam Safety Program for the Virginia Soil and Water Conservation Board. It offers a general interpretation of applicable Code and Regulations but is not exhaustive.

Each situation may vary and require additional interpretation of the Dam Safety Act and regulations.

Roadways On or Below Impounding Structures

I. Background: Section 4VAC50-20-40 states that hazard classification depends on potential loss of human life or property damage downstream from failure or faulty operation of the impounding structure or appurtenant facilities. In addition to direct

Impacts on human life, residences, businesses, structures, or roadways in the dam break zone also influence classification. This guidance clarifies which roadways may trigger high, significant, or low hazard classification.

II. Definitions: "Dam break inundation zone" is the downstream area affected by dam failure.

(DCR-VSWCB-023) (11/10) 1

• Page 2 ---

III. Authority: The Dam Safety Act in Virginia provides the authorities for this guidance.

§ 10.1-605. Promulgation of regulations by the Board.

A. The Board shall promulgate regulations to ensure impounding structures in the Commonwealth are properly constructed, maintained, and operated.

C. The Board shall consider low-traffic, limited-use private roadways downstream or across impounding structures when determining hazard classification.

The Impounding Structure Regulations contain authorities applicable to this guidance:

4VAC50-20-40. Hazard potential classifications of impounding structures.

A. Impounding structures shall be classified into one of three hazard categories as defined in subsection B and Table 1.

B. Hazards refer to potential loss of human life or property damage downstream from failure or faulty operation of the impounding structure or appurtenant facilities.

Hazard potential classifications of impounding structures are as follows:

1. High Hazard Potential occurs when failure causes probable loss of life or serious economic damage, including impacts to residences, businesses, structures, or major roadways like interstates, primary highways, or high-volume streets.

1. Significant Hazard Potential is defined where an impounding structure failure may cause the loss of life or appreciable economic damage. "May cause loss of life" means that impacts will occur that could cause a loss of human life, including but not limited to impacts to facilities that are frequently utilized by humans other than residences, businesses, or other occupied structures, or to secondary roadways. Economic damage may occur to, but not be limited to, building(s), industrial or commercial facilities, public utilities, secondary roadways, railroads, personal property, and agricultural interests. "Secondary roadways" include, but are not limited to, secondary highways, low-volume urban streets, service roads, or other low-volume roadways.
2. Low Hazard Potential is where failure causes no expected loss of life and minimal economic damage.

C. The owner shall propose the hazard classification, subject to Board approval. To support classification, dam

(DCR-VSWCB-023) (11/10) 2

• Page 3 ---

break analysis shall be conducted by the owner's engineer. Present and planned land-use for which a development plan has been officially approved by the locality in the dam break inundation zones downstream from the impounding structure shall be considered in determining the classification.

D. Impounding structures may be reclassified by the board as needed.

IV. Discussion and Interpretation:

According to 4VAC50-20-40, hazard classification depends on potential downstream loss of life or property damage, including impacts on public and private roadways downstream or across dams.

Impact determination

All impacted public and private roadways shall be considered in hazard classification. Impact assessment may follow any of the following criteria.

The dam owner’s engineer may choose the criteria to evaluate impact:

1. First, the approach to roadways outlined in Section IV, Part D of the United States Department of the Interior, Bureau of Reclamation’s ACER Technical Memorandum No. 11 (available from Dam Safety) may be generally utilized. An impact shall be deemed to occur where there are one or more “lives-in-jeopardy” as a result of a dam failure; or
2. Second, an acceptable reference method per 4VAC50-20-320 may be used to determine roadway impacts; the owner’s engineer must cite the methodology.
3. Third, any roadway overtopped (at any depth) by a dam failure under any flood condition may be considered impacted.

Classification based upon roadway type and/or traffic volume

Once impact is determined, classification based solely on roadway type and/or traffic volume.

Considerations include roadway type and traffic volume.

To determine traffic volumes, use the latest AADT data from VDOT for the road segment nearest the impounding structure.

This info is available from VDOT at http://www.virginiadot.org/info/ct-TrafficCounts.asp. Local government data may also be used if available.

(DCR-VSWCB-023) (11/10) 3

• Page 4 ---

If AADT data is unavailable, a standard ITE trip rate may be used. All traffic volumes should meet VDOT standards and be conducted or approved by the owner’s engineer or Regional Engineer.

High hazard impounding structures are those that may impact “major roadways”. “Major roadways” include, but are not limited to, interstates, primary highways, high-volume urban streets, or other high-volume roadways generally in accordance with VDOT designations. “Interstates” and “primary highways” include those roadways given these designations by VDOT, except that any so designated roadway having an AADT volume of 400 vehicles or less is not required to be considered an “interstate” or “primary highway”. The terms “high-volume

“Urban streets” and “other high-volume roadways” are defined by the owner’s engineer.

Significant hazard impounding structures may impact “secondary roadways”, including secondary highways, low-volume urban streets, service roads, or other low-volume roadways per VDOT designations. These exclude “interstates”, “primary highways”, high-volume urban streets, “other high-volume roadways”, and “limited use roadways” with AADT of 400 or less.

Low hazard potential is where a structure failure causes no expected loss of life and minimal economic damage. It may qualify despite impact on downstream roadways if other factors do not raise hazard classification.

If downstream factors do not raise hazard classification, a limited use roadway (AADT ≤400) may be considered low hazard, with an Emergency Plan for notification. When multiple limited use roads are impacted, their traffic volumes are combined unless trips are substantially the same, resulting in AADT ≤400.

(DCR-VSWCB-023) (11/10) 4

• Page 5 ---

If two impacted roads each have AADT of 300, total 600, the structure is significant hazard; if each has 150, total 300, it may be low hazard if downstream factors are favorable.

Incremental damage analysis in 4VAC50-20-52 remains available; it cannot reduce hazard classification but can adjust spillway design flood requirements.

V. Adoption, Amendments, and Repeal: This document will remain in effect until rescinded or superseded.

_______________________________________________ November 30, 2010 David A. Johnson Date Director, Department of Conservation and Recreation

(DCR-VSWCB-023) (11/10) 5